To date, early Christian sources have drawn the scholarly attention of theologians, scholars of biblical commentary, and historians, but not of legal historians, presumably because such sources do not offer sufficiently substantial material for legal historical research. Nevertheless, a few studies have blended legal history and late antique Christianity, and an analysis of these studies shows they are based on a “centralist,” or “formalist–positivist,” conceptualization of law.

In this paper I review the scholarship of legal traditions in the eastern Roman Empire— namely, Roman law and Greek legal traditions, the halakha in rabbinic literature, and the halakhic traditions in Qumranic literature and in the New Testament—and contextualize it within developments in legal theory and legal sociology and anthropology (that is, the rise of legal pluralism). This review shows that developments in legal theory, in legal sociology and anthropology, and in legal history of the late antique world are producing new paradigms and models in the study of late antique legal history. These new models, together with new methods in reading early Christian non-legal texts of the eastern Roman Empire, can be utilized in the study of early Christianity, thereby opening gateways to the study of its legal traditions and revealing independent legal traditions that have remained hidden to date.

To Prof. Aharon Shemesh,

Who opened the gates of Halakha, Torah and research for me

In the first half of the first millennium, Christianity had only marginally developed an internal legal tradition and had barely elaborated an internal legal system in its own right. Christians, so it is assumed, followed Paul's call to abolish the biblical Commandments, thereby making Christianity inherently antinomic. As a result, early Christian sources principally draw the scholarly attention of theologians, scholars of biblical commentary, and historians, but not legal historians, since it is generally held that these sources simply do not offer substantial enough material for them.1 Thus, the current scholarly world does not devote the same attention and effort to the study of late antique Christian law and legal traditions as to other topics in late antique Christianity. In fact, a brief review of some of the recent introductory studies to Christian law illustrates this phenomenon quite clearly. These studies usually open with a lengthy discussion on law in the New Testament and continue with a description of early Canon law, while only briefly reviewing late antique Christian legal traditions in the period after the New Testament, up to the emergence of medieval Canon law.2 Displaying this significant time gap in the description of the evolution of Christian law, they point to the marginality of law during the formative stages of Christianity, the time of the early “Church Fathers.”

This picture raises questions regarding the concept of law held by scholars of early Christianity. How is law defined and conceptualized by these scholars and how does this conceptualization shape both the definition of law in modern Western culture and research, and in the study of the legal traditions of Late Antiquity? Can a different conceptualization of law, based on different cultural assumptions, enlighten and enrich research of late antique law?

While late antique Christian law is barely studied as an internal legal system, there are studies that do tie the two research fields of legal history and late antique Christianity together through various focal points. These studies can be divided into three main categories: the sparse Christian literature categorized as “legal,” the development of Christian hierarchy and institutions, and the influence of Christianity on Roman law. The Christians of the first centuries C.E. left only a small number of “legal” texts—that is, texts addressing the regulation of the behavior and practice of the Christian community and clergy, or rulings on specific issues. These texts include the so-called “Church Orders,” Councils, and Bishops’ Letters.3 These so-called “Church Orders,” the most famous of which are the Didache,4 the Didascalia,5 and the Apostolic Constitutions,6 originated mainly in the Eastern Roman Empire. They are often studied in relation to halakhic traditions and Jewish-Christian literature. The Councils, documented from the second century onward, are discussed with emphasis on their textual developments,7 their importance for later canonical collections,8 and the evolution of the institutional and organizational aspects of the early Church.9 Likewise, Bishops’ Letters, the most famous of which are the three canonical letters of Basil of Caesarea, and early Christian writers’ direct comments and discussions regarding the concept of law, are also studied as part of the scholarly discourse on the development of Christian antinomism and legal theory, mainly following the ideas of natural law.10 

Thus, Christianity, as portrayed in these studies, did not produce a systematized and unified set of laws, and referred to natural law—which could be seen as universal—only in theoretical discussions. This picture has led scholars to claim that early Christian references to law and practice cannot be described as part of an independent internal Christian legal system, but should rather be viewed in the context of local customs and norms.11 

While it is hard to assert that the “Church Orders” portray a legal system per se, it is easier to argue that the early Christian institutions do. The development of the institutional and hierarchical features of Christianity—especially the authority and power of the Church—has attracted significant scholarly attention. Research in this field begins with studies of the New Testament, especially the Pastoral Epistles, describing the earliest stages of the organizational and institutional dimensions of the newly established Church and the seeds of Canon law.12 Research continues with studies on the formation of Christian authority,13 the judicial role of the bishops and their courts,14 the ability of the bishops to enforce their rulings, the penal system,15 and the relationship between the bishops’ authority and that of the Roman judges and legislators.16 

Yet another topic in the study of law in relation to late antique Christianity is that of the influence of Christian thought and practice on post-classical Roman law. Scholars such as Edoardo Volterra,17 Biondo Biondi,18 Jean Gaudemet19 and, later, Judith Evans-Grubbs20 and others have discussed the question of Christian (or oriental) influence, or the lack thereof, on Roman law.21 They have focused mainly on issues in which Christian legal stances differed from those of Roman law, such as the prohibition on divorce and the status of betrothal, and on changes that Constantine introduced to Roman law—whether in support of rising Christianity or for other reasons. They have also tended to concentrate on the Christian influence on the early Byzantine codes (namely, the Theodosian Code and the Corpus iuris civilis), which are compiled from classical Roman law, yet were edited after the Christianization of the Empire.22 

Similarly, Roman law formed part of the legal literature composed by Christians, such as the Syro-Roman Lawbook23 in the East and the Collatio legum mosaicarum et romanarum, compiled in the west by either Christians or Jews.24 These two compilations raised questions regarding the amount of Christian or oriental legal thought and traditions embedded in Roman legal sources. The relationships between Roman law and Christian legal traditions were also the main topic of discussion in the study of medieval Canon law in the West, where Roman law constituted the main contributor.25 

As Caroline Humfress argues, the concept of law underlying most studies in late antique legal history can be tagged as centralist.26 According to this definition, law is usually systematized and unified and, most importantly, related exclusively to central authority and enforcement, to courts, and to the execution of the law. In the same vein, David Wagschal, in his study of Christian Byzantine legal literature, pointed to the fact that modern legal historians and lawyers conceive law as “an independent and abstract project or field of learned endeavor concerned with the application of a formal system of mostly written rule.” It is, he observes, consistent, systematic, autonomous, and developed by a professional class of legal experts. Wagschal therefore uses the tag “formalist-positivist” to describe this concept and claims that, while legal theory and legal anthropology have long removed themselves from this definition, it remains dominant in modern western culture and, thereby, in modern western legal history.27 

These two rigid definitions of law—centralism and formalism-positivism—describe law as perceived by western legal historians of the pre-modern world. As such, they are cultural claims rather than fully detailed theoretical claims. Nevertheless, they not only explain the current state of late antique and Byzantine legal history, but also supply a reason for the lack of study of Christian legal traditions as a legal system in its own right. Based on these paradigms there is no reason to search for an internal tradition of Christian law, as the limited written Christian sources describe mainly non-systematized, non-unified and localized legal traditions. Furthermore, in the first centuries of the Common Era, Christians had little authoritative power and therefore could not initiate their own law. According to the centralist paradigm, only the law of the Empire (in this case, Roman law), and even the Christian influence thereon, should form part of the study of late antique law.

Are these unnuanced, culture-based conceptualizations of law inevitable, or are there alternative ways of conceptualizing law that would be better suited to the study of the late antique world? Furthermore, do these concepts of law constitute a sufficient enough model? Or might they create blind spots in the study of late antique Christianity? As David Ibbetson claimed, regarding studies of medieval legal history, legal historians tend to study the history of law assuming that law changes through time, while they regard the mere definition of law as stable. They presuppose that there are legal traditions that develop in various ways without inquiring into the developments evolving within the frameworks of these legal traditions that define them as “law.”28 

Disregarding such changes creates lacunae in our understanding, as scholars tend to perceive law according to their own definition—which usually correlates with the modern western definitions of law—even though this does not necessarily comply with the historical definition of law. Highlighting the backdrop of centralism in late antique legal history therefore raises the question of whether late antique law can safely be assumed to be unified, systematized, institutionalized, and studied only from authoritative legal texts, and queries the impact of (or even the damage caused by) this assumption.

In the present paper, the terms “centralism” and “formalism-positivism” refer to the common western cultural definitions of law and to their use by legal historians rather than to fully-detailed theoretical claims and their use by legal theorists. I ask how these terms explain the overall direction of research on late antique law, including trends in the study of Roman law, Greek legal traditions, and sectarian and rabbinic halakha, and their underlying assumptions. I will contextualize these assumptions within broader developments in legal anthropology and legal theory. This approach will serve as a basis for my conclusions and suggestions for new directions in the study of late antique Christian legal traditions, especially in the study of the Eastern Roman Empire.

ROMAN LAW AND GREEK LEGAL TRADITIONS

Late antique Christianity is not alone in having its legal tradition studied from a centralist, or formalist-positivist, point of view. In fact, research of most legal traditions of the Greco-Roman world was based on similar conventions. Since the nineteenth century, the study of Roman law, its history, and its context has hovered between dogmatic and historical methods.29 While scholars using historical methods have sought to position Roman law in a wider context, taking into account intellectual and historical changes, they have also used dogmatic thinking. Roman law was portrayed as systematic, centralized, unified, and related to enforcement, and its study focused mainly on civil law, disregarding public and religious law.30 This approach can be seen specifically in the works of Max Kaser,31 Leopold Wenger,32 Franz Wieacker,33 and, later, Reinhard Zimmermann,34 to name but a few leading legal historians.

In recent years, however, this paradigm has been questioned, and other, less rigid, forms of law, such as practice and custom, are being considered in the study of the Roman legal system.35 Within this context, Alan Watson maintains the centralist description of Roman law. He, however, does not arrive at this conclusion via a purely dogmatic approach. Keeping in mind the relationship between law and society, Watson claims that Roman law represents pure “law,” which is not influenced by social practices or social pressure, because it stems from the culture of jurists rather than that of society at large.36 The influence of society, actual practices, and legal traditions is, however, more prevalent in the works of others. Following Watson, David Bederman claims that Roman jurists acknowledged custom but only as a source of centralist law rather than as a competing system of practices.37 Aldo Schiavone describes the evolution of Roman law as a specialization of the Roman jurists, and examines their attempt to systematize the law and detach it from other cultural institutions.38 Clifford Ando places greater emphasis on the fact that Roman law accepted local jurisprudence and custom, although over time it was standardized and unified.39 The role of society and its internal legal traditions is most dominant in recent works by Humfress and others, who accept the importance of centralist law and legislation for late antique Roman emperors, but emphasize the importance of other legal traditions, expressed mainly in customs.

These scholars call on us to “think in terms of law as a set of social practices rather than primarily the law of the emperor,”40 to study law from the ground-level up, without privileging formal imperial law over customary law,41 to think of Roman jurists as “conversing” with their surroundings,42 or even to see law as “a site of political debate, not between ruler and ruled, but between several competing groups.”43 

Although gaining more significance in current scholarship, the importance of the various legal traditions and practices forming Roman law does not change the basic definition of Roman law as a centralist, or formalist-positivist, legal system. Roman law is still described as a unified legal system—an expression of imperial rule—that accepts local customs only to a certain, arguable, extent.44 Furthermore, the Romans did not seek to impose their own legal system (that is, private law) throughout the Empire, but rather to allow access to it, thus enabling the survival of various legal traditions.45 Roman law can therefore still be studied from a legal-anthropological approach, as a complementary corrective to the legal-centralist perspective rather than as a replacement thereof.46 

Greek law, however, portrays a much more diverse picture. Archaic Greek law of the poleis, the city-states, has been described as non-unified and non-centralized, to the extent that scholars have even questioned whether the term “Greek laws” is more accurate than “Greek law.”47 Nevertheless, in recent years more and more studies are describing the rule of the law, rather than the rule of the tyrant, in Archaic Greece, and seek to convey the universality, consistency, and unity of this legal system.48 Later Greek papyri from Ptolemaic and Roman Egypt expose diverse legal systems,49 since the legal traditions arising from them differ both from the law of the ruling Roman Empire and from local Egyptian legal traditions, leading to the conclusion that Hellenistic and Egyptian legal traditions flourished alongside one another.50 

Likewise, it has been claimed that Greek law does not only refer to official law but also to custom and practice.51 In fact, starting from the end of the nineteenth century, with the discovery of the Greek papyri, the difference between the official Roman legal system and the Greek and Egyptian norm has become evident. Studies such as those of Ludwig Mitteis,52 Ernst Levy,53 Raphael Taubenschlag,54 Hans Wolff,55 and, more recently, Uri Yiftach,56 have shown that Egyptian papyri, just like western legal sources,57 reflect legal traditions that differ from imperial law. These scholars ask whether the legal concepts described in these papyri can be regarded as an independent legal system operating in the Roman Empire and interacting with Roman law in various ways (even prior to 212 C.E.), yet not always correlating with it,58 or whether these legal concepts constituted a simplified, corrupt, version of Roman law.59 In fact, these papyri also call into question the significance of the Antonine Constitution of 212 C.E. as a turning point in the spread of Roman law in the Empire.

Even before the Constitution, which declared most inhabitants of the Empire to be Roman citizens, Roman civil law was used in the provinces. Later, it was accessible there, but was not necessarily enforced.60 The papyri, therefore, serve not only as a means of viewing the diversity of Greek law, independent of Roman law, but also as a means of studying the spread of a unified Roman legal system and the survival of other legal traditions under Roman rule.

The diversity of Greek law (that is, the fact that, as portrayed in the papyri, it did not only subsist under the Roman regime, but was in itself also composed of different, and sometimes contradictory, legal traditions) led to its being labeled “pluralistic” from the beginning of the twentieth century.61 Classifying Greek law as pluralistic, and portraying Roman law as influenced by custom and practice, constitute one of the bases for a change in the study of Roman law and Roman society.

In the 1960s and 1970s, with the general rise of social history, the study of Roman history also changed, with intensifying scholarly interest in Roman society and social processes.62 This change had an impact not only on the study of Roman society but also on the study of Roman law, which shifted from a dogmatic and historical perspective on an official, authoritative legal system to a social and historical study of Roman law in relation to society and practice. As John Cairns and Paul du Plessis argued,63 the beginning of this shift was initiated in 1967 in John Crook's book, which set out to study “Roman law in its social context.”64 This trend continued in the works of Susan Treggiari, Richard Saller, and Jill Harries, who used legal sources, or legal questions and topics alongside non-legal sources, in their study of Roman and Greek societies65 and in their research into how law functions within society.66 

Other scholars changed the direction of this focal point and, from studying society using its legal context, moved toward studying the law using its social context. David Johnston, in 1999, set out “to understand the law in light of the society,”67 while Thomas McGinn, in his study of prostitution, suggested a multidirectional pattern of development of law and society rather than a linear description of law changing in one direction due to social changes.68 

LEGAL PLURALISM

The studies focusing on Roman law and society and on Greek legal traditions not only change the focus and breadth of the historical study of law but also challenge its very concept. The most significant term used to describe Greek legal traditions in these studies is “pluralism.” However, the use of this term is frequently flexible, varying from referring to various—sometimes competing—legal traditions subsisting under imperial rule, to describing different levels of practices and custom as equal to enforceable official law. Nevertheless, in all cases the definition of law differs from the centralist, or formalist-positivist, definition of law. Law is non-systemized, non-unified, and localized; it refers to several, sometimes contradicting (yet coexisting) legal traditions from different communities and different periods, or to different levels of authorities and sources of law, thereby creating various levels of commitment and enforcement.

Questioning the common centralist, or formalist-positivist, concept of law is not unique to the study of ancient legal history or even legal history in general; rather, it is part of the debate on the concept of law in modern legal theory. Starting at the beginning of the twentieth century, the concept of “living law,” which is not necessarily state law and the discussion on the relation between law and custom, emerges with the work of Eugen Ehrlich, a historian of Roman law and one of the founders of sociology of law.69 These were the basis for significant developments in sociology of law and legal theory.

Beginning in the 1970s, with the rise of legal pluralism, claims that various legal systems may coexist, or that law is not necessarily linked to imperial power but to authorities of various degrees—creating differing levels of commitment—were significantly developed in studies in legal sociology and anthropology. Scholars criticized the centralist concept of law and challenged the assumption that law and legal authority are exclusively tied to the state, pointing to other legal systems coexisting with state law,70 which may be disconnected from official authority and power.71 In so doing, they contradicted the main proponents of legal centralism—often identified with legal positivists—such as John Austin, who claimed that law is the command of the sovereign, and H. L. A. Hart and Joseph Raz, who related legal authority to the collective recognition of law.72 

John Griffiths, in one of the founding articles on legal pluralism, reviewed studies of social scientists, discussing other normative systems and undermining the concept of law as a centralist system. Griffiths redefined the concept of law and expanded it to refer to “self-regulation of a ‘semi-autonomous social field.’”73 This definition, which draws on that of Sally Moore,74 marked the start of legal pluralism and its new definition of law, a definition that includes various versions of non-state law, indigenous law,75 religious law, and customs and social norms.76 Furthermore, the expansion of the definition of law to other social regulations and norms led to the development of New Legal Pluralism—that is, studies on sub-cultures within western society focusing on socio-legal norms and practices, rather than studies limited to post-colonial cultures focusing on coexisting legal systems.77 It also led to the diffusion of this concept into international law as an example of non-state law.78 

The main analytic criticism leveled at legal pluralism, already found in the writings of Sally Merry, Sally Moore, and others, refers to the borders of the expanded definition of law: if law is not only centralist, is not only state law, what is the difference between law and other social orders that are not law? Where should one draw the new line? In other words: when does normative diversity become legal pluralism? Simon Roberts warned that “some of these expansive moves to represent law as present beyond the state, even as having nothing to do with governing, leave us with a diminishing sense of what law is”;79 and Brian Tamanaha claimed that, while legal pluralists join forces in their rejection of the centralist concept of law, and say what law is not, they do not give a unified, clear definition of what law is.80 As a result, Tamanaha does not define what law is, but rather accepts the claim that law is whatever people refer to as law. By not tagging all law as the same phenomenon, he allows for a more nuanced comparative and empirical approach to studying co-existing legal systems.81 Tamanaha accepts the claim that “custom” is not “law.” That, however, does not mean there is no reason to discuss state law in comparison to other social regulations and address their relations, influences, or competitive co-existence.82 

Griffiths, almost twenty years after his initial article, accepted this criticism,83 and claimed that legal pluralism should actually refer to normative pluralism, or pluralism of social control, in which centralist law is just one channel of social control, among others. He also concluded that custom is, in itself, centralist and is a source of positivist law. By that, instead of undermining the centralist concept of law, since it does not include custom, he strengthens it by bringing custom into the centralist legal system.84 

Criticism of the centralist concept of law, however, is not only based on sociology and anthropology85 but is also part of the theoretical debate over law. One of the most notable essays on a concept of law unrelated to state and power is that of Robert Cover. In his renowned article Nomos and Narrative,86 Cover followed Mark DeWolfe Howe and others87 in claiming that not only states but also communities possess certain sovereignty. According to Cover, law and its authority are rooted in meaning and interpretation rather than in enforcement. Law is a cultural phenomenon created by normative communities and is dependent on societal commitment to this communal effort rather than on state power and enforcement. As an example of non-state law, Cover chose halakha, the Jewish legal system, using an example from halakhic sources from the sixteenth century. Choosing halakha, however, not only reflects Cover's concept of halakha as a non-state legal system, it also correlates with various studies on halakha from different periods, which describe it in wider and less strict terms than those used for the positivist description of legal systems.88 

MISHPAT IVRI AND HALAKHA

Jewish law in the twentieth century, like Roman law, is studied using four different approaches: dogmatic, historical, philosophical, and comparative. Nevertheless, the emphasis of these perspectives varies in the study of Talmud and halakha and in the study of Mishpat Ivri (literally, Hebrew law). The study of Talmud and halakha, which is usually conducted in humanities faculties, relies mainly on historical-philological and philosophical methods (focusing on the halakhic sources and their textual development, on the changes in halakha, and on contextualizing halakha in relation to contemporaneous legal systems). By contrast, the study of Mishpat Ivri, while using these methods, places more emphasis on the dogmatic study of Jewish law, limits itself to fields included in western legal jurisprudence, such as civil law, and utilizes comparisons to modern western legal theory in its research.

The study of Mishpat Ivri was founded by the Mishpat Ivri movement, which sought to describe Jewish law as a comprehensive legal system,89 mainly as part of the Zionist attempt to prepare and formulate Jewish law for use in the modern Jewish state. Menachem Elon, for example, the main promoter of Mishpat Ivri, advocated for a historic and dogmatic study of Jewish law.90 Other scholars, such as Eliav Shochetman, went further and claimed that Mishpat Ivri should be studied using dogmatic and ahistorical methods,91 while Hanina Ben-Menahem called for jurisprudential analysis rather than historical reconstruction of Jewish law.92 

Nevertheless, the dogmatic study of Jewish law does not imply that Jewish law matches the positivist concept of law. For example, Bernard Jackson compared the modern positivist paradigms to the halakhic system93 and claimed that, unlike the positivist concept of law, halakha is non-centralized and non-unified. It gives significant room to morality, and the authority of its jurists draws from the respect felt toward them rather than from their official power.94 

These aspects of halakha are relevant not only to the research on the medieval and modern halakhic world but also to the study of Late Antiquity. In fact, tracing the influence of Cover's Nomos and Narrative on modern scholarship of Late Antiquity can be used as a test case, and enable a better understanding of the paradigms guiding the study of halakha and law in current scholarship. Indeed, Nomos and Narrative played a significant role in modern legal studies, and in introducing Jewish law into the American legal system.95 Likewise, its continued relevance to modern Israeli scholarship is clear from the fact that it was translated recently to Hebrew in a series of Great Books, despite nearly thirty years having passed since its initial publication.96 

For our discussion, however, it is important to note that Nomos and Narrative inspired a substantial number of studies on the pluralistic aspect of the late antique Jewish Nomos (that is, the halakha)97 or on its Narrative (that is, the aggada) and the relationship between Nomos and Narrative (that is, between halakha and aggada).98 Unfortunately, this scholarly work has hardly had the same impact on the study of Roman law or early Islamic law.99 Similarly, the pluralistic aspect of halakha stands at the core of several recent studies on late antique Judaism.100 Richard Hidary, following Hanina Ben-Menahem, distinguished between the tolerance for legal pluralism in the Babylonian Talmud and the insistence on uniformity of practice in the Palestinian Talmud,101 and has shown the acceptance of the local aspect of halakha in Babylon, contrary to Palestine.102 

Following his earlier assertion regarding the polysemy in rabbinic literature,103 Steven Fraade recently claimed that the Tannaitic legal literature (of the first and second centuries) and Amoraic legal literature (of the third through sixth centuries) is inherently multi-vocal.104 Tangential topics, such as the claim of one truth in halakha, were also discussed in studies by Ben-Menahem and later Christine Hayes. While Ben-Menahem105 and others argued that the rabbis accepted different claims as true, Hayes argued that the rabbis preferred equity over justice106 and did not attribute values of truth to the halakha.107 Thus, her research adds to several studies on equity,108 the moral values in halakha,109 legal fictions,110 studies on the concept of controversy and authority,111 and studies on the correlation between halakhic thought and natural law.112 

Questions regarding the difference between the halakha as portrayed in rabbinic literature and halakha as practiced, and, consequently, the relations between the rabbinic movement and the Judean communities, are also addressed in the modern study of late antique halakha. Such questions arise from the material evidence, which does not always suit rabbinic literature, as Yonatan Adler recently surveyed,113 and from the practices and regulations attested in the Dead Sea Scrolls and their relation to rabbinic halakha. The Qumranic regulations also lead to theoretical discussions regarding the suitability of the term halakha to describe these Qumranic regulations, as we will see below.

Halakha, therefore, is significant to the study of late antique legal traditions because of the paradigm it offers legal historians: unlike the study of Roman law, modern scholarship of halakha acknowledges its pluralistic aspect and indeed focuses on it, thus portraying a different model of late antique law.

HALAKHA, THE NEW TESTAMENT AND QUMRAN

Not only does halakha offer a different model for the conceptualization of late antique law it also plays a unique role in the study of late antique Christian legal traditions, especially in the study of the foundations of the early Christian legal tradition as reflected in the New Testament. Legal traditions preserved in the New Testament and Apostolic Letters were studied as part of a wider effort to position these compositions in their social and historical context. Unlike research on the theology of the New Testament, which refers to both the Greco-Roman world and the Jewish world, research focusing on law led scholars to discuss the New Testament almost exclusively in its Jewish context, be it sectarian or rabbinic.114 

Starting from the 1970s,115 with the groundbreaking works of J. Duncan Derrett,116 Ed Sanders,117 and others, the law in the New Testament was discussed in the light of halakha, that is, in the light of legal traditions attested in sources ranging from Qumran, the Dead Sea Scrolls, Apocryphal literature, and rabbinic literature, and following the halakhic definition of law, which includes religious law and custom in addition to civil law. Such studies tend to discuss either specific halakhic issues, such as the Sabbath,118 circumcision, purity,119 marriage law,120 and dietary laws, or examine the concept of law focusing on Jesus121 or on Paul,122 and discuss their understanding of the law, their possible antinomic claims, and the Jewish-Christian polemic. These studies seek to determine the legal system underlying the early Christian sources by way of identifying the earliest Christian communities and their relationship to their surroundings.

The main questions asked are: Whose law is reflected here? Is it the Roman legal system, since the early Christians were part of the Roman Empire? Is it Jewish Law, since early Christian communities were related to Jewish communities in various forms and degrees? If so, what kind of Jews? Are they sectarian,123 rabbinic, or Hellenistic?124 The study of law in the New Testament is also used as a tool for dating this literature,125 discussing the relations between the gospels,126 or discussing the parting of the Jewish and Christian communities.127 

Nevertheless, a small number of early studies focus on law in the New Testament in its Greco-Roman context, discussing mainly status, citizenship, and capital punishment, especially in the context of Jesus’ trial.128 In fact, even when Alan Watson, a legal historian specializing in Roman law, discussed these topics, he emphasized Jesus’ Jewish background rather than the Greco-Roman context.129 Law, therefore, when studied in relation to the New Testament, whether as a means of contextualizing or of dating the New Testament, is usually defined as halakha, or even as halakha in its Qumranic version, rather than western centralist or formalist-positivist law.

A few studies, however, focus on halakha in late antique Christian sources beyond the New Testament. While some center on Jewish ritual or religious observance attested in early Christian literature130 (as do the studies of the halakha in the New Testament), a few new works focus on the “Church Orders,” claiming that they do not only preserve specific halakhot (pl. of halakha), but actually relate to the mere concept of law as rabbinic halakha. A few studies examining the Didache,131 the Didascalia,132 and the Apostolic Constitutions133 utilize these texts not only to discuss the Jewish-Christian polemic on law or specific laws, but also to show that aggadic and halakhic discourse and ways of thinking are actually embedded in these texts, and that their recognition enables a better understanding of them.

The focus on law and halakha in these studies is a result of the importance of halakha in Judaism. As Ephraim Elimelech Urbach noted in the opening to his monumental book: “Nothing has made its influence more profoundly felt on the course of the history of the Jewish people, shaping its way of life and giving it form and substance, than the Halakha.”134 Had halakha not been a key factor in the definition of Judaism, whether as a new development of the rabbis living under the Roman Empire or earlier,135 it would not have been so in the study of the New Testament and the attempt at identifying its social and cultural background.136 Nevertheless, the rise in the study of the legal aspect of the New Testament, rather than its theological dimension, did not occur in a void; it is linked to a similar development in the study of the legal traditions of Qumran literature.

As Lawrence Schiffman and others have claimed, the study of halakha in Qumranic literature started only after 1967, when the scrolls reached the hands of Jewish scholars. With the publication of the Temple Scroll in 1977 and the subsequent legal texts, the study of Qumranic halakha emerged, mainly conducted by Jewish scholars trained in traditional or academic Talmudic studies.137 These scholars, acquainted with the concept of halakha rather than law in its centralist and formalist-positivist form, included in halakha various levels of customs, practices, rituals, and norms, and did not tie it to the power of the state and its enforcement, nor limit its fields of research to those of western jurisprudence. They searched for halakha in Qumran and drew their colleagues to the study of legal traditions in Qumran and the New Testament.138 

As with the study of Talmudic halakha, the study of Qumranic halakha refers not only to issues such as the judicial system139 and penal law140 or private law (for example, marriage and divorce)141 but also to ritual law, including purity,142 the calendar, and the Sabbath and holidays;143 it also relates to questions regarding social setting and practice, rather than the official norms in Qumran.144 Moreover, the study of halakha in Qumran also stimulated lengthy discussions on the concept of Qumranic law, starting from Yaakov Sussmann's groundbreaking study, which portrayed Qumranic halakha as more stringent than rabbinic halakha.145 Daniel Schwartz's innovative article subsequently characterized sectarian halakha as realist (that is, as a system that defines the Commandments as representing the real world), whereas Talmudic halakha is nominalist (defining the Commandments as the will and sovereignty of the commanding God).146 In response, Jeffrey Rubenstein suggested that the difference between Qumranic and Talmudic halakha is not a result of a different concept of law, but rather a result of the time gap between the two. This time gap allowed Talmudic halakha to further develop, thus resulting in a more nominalistic approach, but it is not inherently more nominalistic.147 In any case, questions of realism in Qumranic halakha,148 the New Testament,149 or rabbinic halakha150 continue to be debated, and new ways to explain this difference suggested.

Thus, while it is not clear that Qumranic halakha is realistic overall, it is evident that, at least in some cases, it follows realistic trends. Similarly, while there are marked differences between Talmudic and Qumranic halakha, it is also unquestionable that Qumranic halakha, just like its Talmudic counterpart, does not correlate with the centralist and formalist-positivist definition of law. Unlike this definition, Qumranic halakha embraces social norms alongside institutionalized norms; it is local, refers to ritual practices and customs, and draws its authority from the understanding of nature, scripture, or charisma rather than from enforcement and sovereign power.

Indeed, the search for halakha in the Dead Sea Scrolls was justly criticized, since the term halakha does not even appear therein.151 Furthermore, the phenomenon known as halakha does not suit the practices, norms, or regulatory writings of the Scrolls in its level of detail and systematization. While, in comparison with modern legal systems, rabbinic halakha is non-systemized and localized, or possibly trans-localized (and hence not “law”), in comparison with Qumranic legal traditions it is actually Qumran that is even less systematic, and hence not even halakha, and definitely not “law.”152 Using the term halakha with regard to sectarian practices therefore indicates continuity and identity, which cannot be presumed. Nevertheless, the use of this term continues.153 Moreover, in the context of this paper, and for want of a better label, the term halakha seems to be more suitable than the term “law”: Qumranic practices, norms, and regulations are closer to Talmudic halakha, in both scope and concept, than to the modern (centralist) definition of law.

TOWARD A NEW MODEL OF RESEARCH

As a paradigm, the centralist, or formalist-positivist, cultural concept of law fails to adequately describe the various legal systems in the late antique Greco-Roman world. It does not suit Greek legal traditions, Talmudic and Qumranic halakha, or the legal traditions of the New Testament, and only partially suits Roman law. Unlike the centralist, or formalist-positivist, paradigm, the move to disentangle the concept of law from uniformity, imperial power, and enforcements, and adding to it custom, practice, and norms, seems better suited to comply with the study of law in Late Antiquity. If this is the case, can this disentanglement and expansion also open a gateway to studying late antique Christian legal traditions? In other words, is the key to studying Christian legal traditions in their own right, rather than exclusively in relation to Roman law, rooted in shifting from a top-down model to a bottom-up model, that is, from a model that focuses on imperial legislations and formal law, to one that focuses on social practices, regulations, customs, and norms? Might this make room for the study of the relationship between law and society, observance and norm, taking into account that Christian legal traditions can be described as “living law,” rather than “non-law?”154 

For a new model of research, a new concept of law, however, is not enough. New texts that serve to reveal practices and norms rather than official legislations are also required. Such texts are the Christian non-legal texts, namely the theological treatises, hymns, biblical commentaries, and histories, which preserve evidence of legal thought and practice. The study of non-legal texts in search of evidence of legal thought and practice is frequent in the study of Roman law, especially by scholars focusing on Roman law and society.155 Furthermore, Christian non-legal texts, mainly of authoritative writers such as Augustine, Ambrose, Jerome, and Origen, were cited during the Middle Ages as sources of Canon law.156 In modern research, scholars of late antique Roman law used Christian non-legal sources as evidence of Roman legal traditions, and saw them as indications of Christian practice of Roman law, or influence on Roman law.157 Thus, while this may demonstrate that non-legal texts help preserve legal traditions, it does not yet prove that non-legal texts preserve unique legal traditions that are different from those of the Empire, nor does it point to a custom, practice, or norm unrepresented in formal legal literature.

Caroline Humfress recently surveyed the evidence of law and practice in non-legal Christian texts and their use in the study of Roman law.158 A close look at the non-legal texts she surveys, however, shows that they are mainly Christian texts written in Latin. While this indicates that the Latin Christian writers tended to use Roman law for their own theological and exegetical purposes, it does not imply that they developed an internal independent and unique legal tradition. Similar conclusions arise from surveys of the legal traditions mentioned by Tertullian,159 Cyprian,160 and Augustine of Hippo.161 They all attest to Roman law, hence their study does not lead to the conclusion that Christians may have developed, or observed, a unique legal tradition.162 

If Humfress’ description is correct, can we conclude that the attempt to study law from non-legal literature is not expected to reveal a unique and independent legal tradition, but rather reflections of Roman law and its practice? Or do such studies only portray the state of the practices and norms of Christians writing in Latin in the western Roman Empire, and hold no relevance for the eastern Roman Empire? What we have seen so far seems to indicate that the Latin west is not identical to the Greek and Semitic east, and the picture portrayed regarding the western Roman Empire and its legal culture does not necessarily suit the eastern Roman Empire and its legal culture. As already noted, while the varying paradigms of legal pluralism suit Greek law and halakha, its suitability to Roman law is partial and debatable, and even those who accept the concept of legal pluralism in the West claim that, over time, Roman law incorporated the different legal traditions and customs into a unified legal system. For example, when Clifford Ando discusses Nomos and Narrative, he actually asserts that, unlike halakha, Robert Cover's paradigm does not suit Roman law.163 

The assumption that the centralist, or formalist-positivist, concept of law does not suit the Eastern Roman Empire, and the assumption that Christian writings of the Eastern Roman Empire may preserve a unique and independent legal tradition that does not correlate with Roman law (at least not exclusively) are strengthened when compared to other phenomena in the late antique Greek and Semitic eastern Roman Empire. First and foremost, the sparse information that we do have about the evolution of a late antique internal Christian legal system, in the form of the so-called “Church Orders,” Councils, and Apostolic Letters, originated in larger quantities from the Greek-speaking east.164 In fact, in recent years, recognition of their importance as evidence of the existence of a body of early Christian legal tradition, and specifically the acknowledgement of the influence of eastern sources in the formation of Christian law, are growing.165 These “Church Orders” are not only important for understanding the formation of eastern Christian law; they themselves are better understood as halakhic exegetical text rather than early texts of Canon law. As Joseph Mueller has analyzed, their editing resembles that of rabbinic texts in its mixture of halakha and aggada, and they are therefore better studied through a halakhic lens rather than through paradigms suitable for texts of Canon law.166 

Second, the difference between the East and the West with regard to Christian legal traditions correlates with studies on local cultures and legal traditions that continued in the Roman Near East.167 Studies on Jewish legal traditions clearly differentiate between their development in the Eastern Roman Empire and Sasanian Empire, and the lack of such developments in the Latin west.168 Similarly, while comparative studies of Jewish and Roman law have been widespread in the works of Boaz Cohen,169 David Daube,170 and others,171 Daube's students, including Reuven Yaron172 and Bernard Jackson, like others, have claimed that Roman law has no direct influence on Jewish law,173 and call for Jewish law to be studied comparatively alongside Hellenistic law, that is, legal traditions from the Greek east.174 In fact, only recently, Kimberley Czajkowski used the Babatha archive, papyri found in the Judean desert, written in Greek, Hebrew, and Aramaic, as a test case for her claim regarding the fluid legal culture and multi-legal communities in the provinces.175 

Third, the same picture arises from the study of Syriac Christianity, which preserves Jewish and other local traditions to a larger extent than Greek- and Latin-speaking Christian communities.176 In the same way, new studies on later Byzantine law show its uniqueness and difference from Roman law in its western form.177 The difference between Christian legal traditions in the East and the West, and their affinity to Roman law, can be clearly exemplified by comparing the two late antique legal treatises, the Collatio legum mosaicarum et romanarum, written by either a Christian or a Jew in the Latin west, and the Syro-Roman Lawbook, written by a Christian in the Greek and Syrian east.178 While both are based on Roman civil law, the former cites Roman law without significant changes, whereas the latter also cites Roman law, but changes it, adds to it, and is occasionaly influenced by other oriental legal traditions.

THE VALUE OF NON-LEGAL LITERATURE: THE CASE OF EPHREM

The three principles discussed here—namely the study of early Christian legal traditions as independent living legal traditions disentangled from imperial law, power, and enforcement; the use of non-legal literature as a source of “living law,” and the focus on the East as a place where the legal traditions not only differ from those of Roman law, but the legal concepts are closer to halakhic legal concepts—are well demonstrated in four of my recent studies on the writings of Ephrem the Syrian. In these studies, I examine the legal traditions Ephrem preserved in his writings, leading to conclusions that were not possible in previous studies. Ephrem, a fourth-century Syrian Christian living in Nisibis and Edessa, is known not only for implementing Jewish traditions in his writings but also for his self-identification with post-Nicene Greco-Roman Christianity and his fierce polemic with the Jews. However, the Jewish traditions discussed so far in scholarship are mainly aggadic as opposed to halakhic. They focus on theology and biblical commentary rather than on law, as Ephrem did not write legal literature.

The first study points to the fact that Ephrem's legal terminology, as used in his non-legal literature, reflects legal concepts different from those of Roman law as well as those used by Greek and Latin Christian writers, but close to Jewish legal terminology and concepts.179 A survey of the terms referring to betrothal (ܡܟܪ), adultery and fornication (ܙܢܝ – ܓܘܪ), marriage (ܫܘܬܦ – ܙܘܓ), and divorce (ܫܒܩ – ܕܠܠ – ܫܪܝ) shows that Ephrem's use of these terms, even when not discussing their legal meaning, is consistent. It may, therefore, be used to deduce Ephrem's understanding of these legal terms. His understanding, however, does not correlate with the legal understanding common in contemporaneous Christian literature in Greek and Latin, nor in Roman legal literature, but rather correlates with rabbinic legal tradition, and especially with Palestinian rabbinic legal traditions. For example, examining the semantic field of the root ܡܟܪ – (to betroth) shows that Ephrem treats betrothal as a bond as binding as that of marriage: he describes infidelity during betrothal as adultery rather than fornication, and the breaking of a betrothal as divorce rather than annulment. The legal tradition reflected in Ephrem's writing correlates, therefore, with rabbinic halakha, which associated betrothal with the same level of commitment as marriage and does not correlate with Roman law and the legal tradition held by Greek and Latin Christian writers, which saw betrothal as a mere promise for future marriage.

In fact, this exact same phenomenon is also apparent in the second case, which focuses on Ephrem's direct pronouncements on betrothal. In a series of statements in different forms regarding the virginity of Mary and her betrothal to Joseph, Ephrem, following contemporaneous Greek and Latin Christian writers, claims that “A man's betrothed is his wife.” This is stated to claim that Mary, though described occasionally as married to Joseph, was actually betrothed to him, which indicates that she was a virgin when conceiving Jesus. This statement, however, is not unique to Ephrem. It originated in a Greek and Latin context, where betrothal is, in fact, very different from marriage. Ephrem, whose legal terminology reflects an inherent affinity between betrothal and marriage, mistranslates this stance when adapting it into his biblical commentary in a way that reveals not only the difference between his legal concepts and those of the Greek and Latin Christian writers but also the gap between the official Christian claim regarding the status of betrothal, which Ephrem adopts, and that subsisting in his terminology.180 

Furthermore, in the third case the study of Ephrem's non-legal literature uncovers not only different legal traditions and practices, but entirely different legal thought. Analysis of Ephrem's approach to the rape of virgins, for example, as reflected in his biblical commentary and hymns, shows that he viewed sexual intercourse, regardless of intent or consent, as creating an automatic marital bond that could not be broken. Even subsequent sexual relations with another man could not break the marital bond that was initially cemented by (in this case forced) sexual intercourse.

This conclusion can be deduced from reviewing Ephrem's commentary on such rape cases, in which the victim is not permitted to go on to have a relationship with another man, and comparing them to cases of rape among married women, which have no implications for the legal status of these wives. This feature, together with acknowledgement only of divorce of betrothed women, and no acceptance of divorce for married women, indicates that, according to Ephrem, sexual relations created an automatic and unbreakable marital bond. By that, his position stands in sharp contrast not only to that of Roman law and contemporaneous Christians but also to that of contemporaneous rabbinic legal thought, and correlates only with legal practices and naturalistic approaches found in the early sectarian Palestinian literature of the Second Temple period. These sects, like Ephrem, in some cases gave legal power to the physical act rather than to legislation and authoritative power.181 

While these three cases highlight the gap between Ephrem's legal tradition and that of Greek and Latin Christian writers, such a gap is not always to be found. A study of two Roman procedures from the betrothal ceremony, attested in the Syro-Roman Lawbook, and a survey of evidence of these procedures in non-legal Christian sources prior to the Syro-Roman Lawbook, shows that, contrary to previous claims, the legal practices discussed in the Syro-Roman Lawbook are not unique to the Roman west, but rather are known in the East. This leads to the conclusion that the penetration of Roman law into the Christian communities of the Eastern Roman Empire, namely the Greek- and Syriac-speaking communities, was earlier and deeper than previously thought.

In turn, this raises questions regarding the origin of the Syro-Roman Lawbook and its relation to the society in which it was composed and translated. In light of these questions, it ceases to be an enforced, external, legal system, and becomes, at least in some cases, a reflection of well-known and fully integrated laws.182 

The first three case studies are based on a legalistic reading of non-legal literature and therefore on the assumption that, while this is not part of official or authoritative legal literature, it may nevertheless preserve legal tradition that subsisted under Roman rule, and differs from that known from other Christians. Furthermore, the fact that these legal traditions are found in the writings of Ephrem, who was neither a bishop nor any kind of ruler, and did not have any official power, strengthens the conclusion that the study of legal thought and practice does not have to be tied to writings of official authorities or related to ruling positions.

Moreover, the first three case studies highlight not only the importance of using non-legal sources to uncover unique legal traditions, but actually point to the specific role of halakha in the study of early Christian legal traditions. The first two cases draw out the Jewish legal traditions that underlie Ephrem's legal terminology. In fact, the second example goes one step further and demonstrates not only the difference between Ephrem's legal concepts and those of contemporaneous Greek and Latin Christian writers, but rather the difference between his own official theological stance, which reflects his identification and involvement with post-Nicene Christianity, and the legal concepts from which he draws in developing his thought.

The third case goes yet further, by showing that disentangling the study of law from legal literature is important both for the study of legal traditions and practices and for the study of legal thought. Ephrem's concept of law, unlike the positivist concept of law, tends toward naturalism—that is, he prefers the physical act (in this case, that of sexual intercourse) over legislations and ruling authority (in this case, the formal marriage ceremony). The fourth case, as with the previous cases, is based on evidence in non-legal literature; but, unlike the others, it does not show Ephrem's unique legal traditions, nor the role of the halakha in his writings. Nevertheless, the use of evidence drawn from non-legal literature, and raising the possibility that the practice might not be identical to that reflected in the legal sources, is what enabled the discussion on the relationship between legal literature and its surrounding society.

These four studies show that reading non-legal literature of the Eastern Roman Empire from a legalistic perspective in an attempt to find evidence of legal thought and practice can lead to fruitful results that would simply not be possible otherwise. This is despite the fact that they do not form part of the official legal literature, do not have normative authority, and do not represent legal traditions related to imperial law, and that the legal traditions found in them may be unique to specific groups. The results of these studies point, on the one hand, to the importance of halakha, both in practices and in thought, and, on the other hand, to the relationship between law and society in cases related to Roman law. That said, analysis of other sources in search of the legal tradition of early Christianity may bring up entirely different results.

CONCLUSIONS

As Clifford Ando has only recently stated, “These are heady days for ancient legal history. In Greek, Roman, Chinese, Hindu, Islamic and Jewish Law, new theoretical approaches, newly published primary materials, and new scholarly resources are transforming fields of inquiry.”183 Isn't it time for early Christianity to join this exciting party?

The tools required for the study of early Christian legal traditions, as well as the conceptual change required for such research, are readily available and accessible. Three scholarly trends molded in the 1970s and 80s—namely, the rise of social history, the rise of legal pluralism, and the study of halakha in the New Testament—have evolved to such an extent that they are ready to consolidate in the study of early Christian legal traditions in the Eastern Roman Empire. Furthermore, the field of Early Christian Studies, unlike its older sister Church History, which focused on the institutional history of the Church, has been heavily influenced by social history and social theory since the 1970s,184 and the questions surrounding the extent to which Christians were part of Greco-Roman society are widely discussed.185 

Other paradigms required for a study of Christian legal traditions as an independent, non-positivist, and non-centralist legal tradition are also available. Not only did legal pluralism penetrate various fields of legal history, but the rise of the paradigm of “Late Antiquity”186 as a period significant in and of itself calls for a study focusing on Christian legal traditions in the post-classical traditions as legal traditions in their own right rather than contaminations of Roman law.

I believe it is time to implement these methods not only in the study of well-established legal traditions, such as Roman law and halakha, or in relation to them, and not only in the Western Roman Empire, which does not show significant evidence of unique Christian practice, but also in the Eastern Roman Empire. This approach would help in the process of uncovering a new legal tradition emerging in late antiquity from its embryonic stage—the Eastern early Christian legal tradition.

Two cautions should, however, be stated. First, the study of Christian legal theory supports the portrayal of Christian law as non-positivist and non-centralist, since studies focusing on direct early Christian stances and treatises relating to legal theory tie the Christian concept of law to natural law theory, as do the studies on Ephrem.187 Christians also acknowledged the role of custom and addressed the question of its relation to law.188 There is good reason, therefore, to believe that late antique Christian legal traditions will present characteristics similar to those of natural law theories, just as with pre-Christian Qumranic halakha, late antique theoretical claims, or medieval Christian legal theory. However, this is far from assured; further investigation and assessment are required.

Second, just as Talmudic halakha is not necessarily a religious legal system in all aspects,189 late antique Christian legal traditions are not necessarily religious legal traditions in all aspects. And just as Qumranic halakha is not identical to Talmudic halakha in all conceptual aspects, late antique Christian legal traditions are not necessarily identical to the halakhic concept. The study of Christian legal traditions should therefore neither be the study of Christian “halakha” nor of Christian natural law,190 and comparisons to Roman law should not be automatically replaced with comparisons to Talmudic sources. Rather, the study of early Christian legal traditions in the Eastern Roman Empire should be open to the study of a legal tradition that, at this stage, is mainly defined in a negative way.

Just as is the case with Greek legal traditions, Sectarian and rabbinic law, Christian legal traditions of the Eastern Roman Empire, a “living law,”191 are not necessarily centralist; they are only possibly non-systemized and non-unified, and are not necessarily tied to imperial law.192 

The scholarly developments required for a bottom-up study of late antique Christian legal traditions, both in legal theory and in legal history, have matured. The texts required for such a project lie in non-legal Christian literature, and especially in the Eastern Roman Empire, such as Greek and Syriac. Such research has the potential to radically shape the future study of late antique legal history and of Christianity in the Eastern Roman Empire.

Notes

Notes
Some papers are set off following a casual, almost coincidental, chat. Such was this paper, which was written following a conversation over dinner with Prof. Maria Mavroudi. Her questions and comments clarified why and how it should be written, and encouraged me to do so. I wish to thank her for that valuable conversation. I also wish to thank my friends and colleagues for their comments: Prof. Caroline Humfress, Prof. Vered Noam, Prof. Thomas Graumann, Prof. Suzanne Last Stone, Dr. Benny Porat, Prof. Assaf Likhovski, Prof. Daphna Hacker and Ms. Amanda Dale. Above all, I wish to thank my mother, Mrs. Gila Monnickendam, who, as always, was my first reader and editor. Her thoughtful and thorough comments and corrections are embedded in every word of this paper, תנצב”ה. The paper was written with the support of the European Commission, Marie Curie, CIG. All errors remain, of course, my own.
1.
For a recent example, see Arye Edrei and Doron Mendels, “Preliminary Thoughts on Structures of ‘Sovereignty’ and the Deepening Gap between Judaism and Christianity in the First Centuries CE,” Journal for the Study of the Pseudepigrapha 23 (2014): 215–38, who compared the Jewish choice of law as a marker of identity and sovereignty with the Christian choice of theology as such a marker. See also the discussion of David Novak, “The End of the Law: A Significant Difference between Judaism and Christianity,” in Transforming Relations: Essays on Jews and Christians Throughout History in Honor of Michael A. Signer, ed. Franklin T. Harkins (Notre Dame, IN: University of Notre Dame Press, 2010), 34–49, who pointed to the problems involved in tagging Christianity antinomic vs. Judaism as legalistic.
2.
See, for example, Luke Timothy Johnson, “Law in Early Christianity,” in Christianity and Law, ed. John Witte and Frank S. Alexander (Cambridge: Cambridge University Press, 2008), 53–69, which, as part of a companion on Christian law, is officially devoted to pre-Constantine Church law, yet focuses mostly on the New Testament. The article by Richard H. Helmholz, “Western Canon Law,” in ibid., 71–87, discusses the roots of Canon law, yet devotes just one page to late antique legal literature. Rémi Brague, The Law of God: The Philosophical History of an Idea, trans. Lydia G. Cochrane (Chicago and London: University of Chicago Press, 2007), 85–93, 127–45 portrays a similar picture in his introduction. Likewise, Clarence Gallagher, Church Law and Church Order in Rome and Byzantium (Birmingham Byzantine and Ottoman Monographs 8; Hants: Ashgate, 2002), sets out to describe Canon law in the first millennium, yet starts his study with sources from the sixth century. Similarly, see the earlier study of Constant van de Wiel, History of Canon Law (Louvain Theological & Pastoral Monographs 5; Louvain: Peeters Press, 1991), 22–55. Nevertheless, a few scholars have described early Canon law with emphasis not only on the New Testament but also on sources between the New Testament and the fourth century. See Ludwig Buisson, “Die Entstehung des Kirchenrechts,” Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung 52 (1966): 1–175; Othmar Heggelbacher, Geschichte des frühchristlichen Kirchenrechts bis zum Konzil von Nizäa 325 (Freiburg: Universitätsverlag, 1974).
3.
For their listing see, for example, Jean Gaudemet, L’Église dans l'Empire romain: IVe–Ve siècles (Histoire du droit et des institutions de l’Église en occident 3; Paris: Sirey, 1958), 33–50; idem, Les sources du droit de l'Eglise en occident du IIe au VIIe siècle (Initiations au christianisme ancien; Paris: Editions du Cerf/Editions du C.N.R.S, 1985).
4.
For the latest studies on the Didache, especially with regard to Jewish literature and halakhic traditions, see the collections of Huub van de Sandt, Matthew and the Didache: Two Documents from the Same Jewish-Christian Milieu? (Assen and Minneapolis: Royal Van Gorcum and Fortress Press, 2005); Jonathan Alfred Draper, The Didache in Modern Research (Leiden: Brill, 1996), and Clayton N. Jefford, The Didache in Context: Essays on Its Text, History and Transmission (Supplements to Novum Testamentum 77; Leiden, New York and Cologne: E. J. Brill, 1995), which include a review of scholarship, as well as specific studies on the halakhic aspects of the Didache.
5.
For a discussion of the Didascalia in relation to Jewish-Christianity and a review of previous scholarship, see Charlotte Elisheva Fonrobert, “The Didascalia Apostolorum: A Mishnah for the Disciples of Jesus,” Journal of Early Christian Studies 9 (2001): 483–509, and the introduction of Alistair Stewart-Sykes, The Didascalia Apostolorum (Studia Traditionis Theologiae 1; Turnhout: Brepols, 2009).
6.
For the legal aspect of the Apostolic Constitutions, see Eva M. Synek, “Dieses Gesetz is gut, heilig, es zwingt nicht.” Zum Gesetzesbegriff der Apostolischen Konstitutionen (Kirche und Recht 21; Vienna: Plöchl-Druck Ges., 1997). For the problem in defining these compositions as Church Orders (rather than exegetical works) and further bibliography, see Joseph G. Mueller, “The Ancient Church Order Literature: Genre or Tradition?” Journal of Early Christian Studies 15 (2007): 337–80.
7.
For some of the earlier studies, see Eduard Schwartz, “Die Kanonessammlungen der alten Reichskirche,” Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung 25 (1936): 1–114.
8.
Jean Gaudemet, “Collections canoniques et codifications,” Revue de droit canonique 33 (1983): 81–109.
9.
Studies on the historical development of the Councils, starting from the second century, begin with the early work of Karl Joseph von Hefele, A History of the Christian Councils: From the Original Documents, vol. 1, trans. William R. Clark (Edinburgh: T & T Clark, 1894) and, more recently, Joseph A. Fischer and Adolf Lumpe, Die Synoden von den Anfängen bis zum Vorabend des Nicaenums (Konziliengeschichte A; Paderborn: F. Schöningh, 1997); Heinz Ohme, Kanon Ekklesiastikos (Arbeiten zur Kirchengeschichte 67; Berlin: Walter de Gruyter, 1998); Hamilton Hess, The Early Development of Canon Law and the Council of Serdica (Oxford Early Christian Studies; Oxford and New York: Oxford University Press, 2002), and the recent review of scholarship of Everett Ferguson, “Creeds, Councils and Canons,” in The Oxford Handbook of Early Christian Studies, ed. Susan Ashbrook Harvey and David G. Hunter (Oxford Handbooks in Religion and Theology; Oxford and New York: Oxford University Press, 2008), 427–45.
10.
See Spyros Troianos, “Das Gesetz in der griechischen Patristik,” in Das Gesetz in Spätantike und frühem Mittelalter: 4. Symposion der Kommission “Die Funktion des Gesetzes in Geschichte und Gegenwart,” ed. Wolfgang Sellert (Abhandlungen der Akademie der Wissenschaften in Göttingen, Philologisch-Historische Klasse 196; Göttingen: Vandenhoeck & Ruprecht, 1992), 47–66, regarding the concept of law in Greek patristic sources in relation to the Jewish and Roman concept of law, and, similarly, Reinhart Staats, “Kanon und Kapitaldelikte: Zwei Grundbegriffe in Gesetzverständnis Westlicher Patristik”, ibid., 28–46 regarding the Latin patristic literature.
11.
Anton Stiegler, Der kirchliche Rechtsbegrieff: Elemente und Phasen seiner Erkenntnisgeschichte (Munich and Zürich: Schenll & Steiner, 1958), esp. 96–109; Jean Gaudemet, L’Église dans l'Empire romain: IVe–Ve siècles; Études de droit romain (Camerino: Jovene, 1979), 1: 5–36; idem, “Essais de systématisation en droit canonique,” in La sistematica giuridica : Storia, teoria e problemi attuali (Biblioteca Internazionale Di Cultura; Roma: Istituto della Enciclopedia Italiana, 1991), 165–80 and, more recently, Kenneth Pennington, “The Growth of Church Law,” in The Cambridge History of Christianity: Constantine to C. 600, ed. Augustine Casiday and Frederick W. Norris (Cambridge: Cambridge University Press, 2007), 386–402.
12.
For a review, see Raymond F. Collins, “The Origins of Church Law,” The Jurist 61 (2001): 134–56.
13.
Jean Gaudemet, L’Église dans l'Empire romain: IVe–Ve siècles; Église et cité: Histoire du droit canonique (Paris: Éditions du Cerf et Montchrestien, 1994); Alexandre Faivre, Ordonner la fraternité: Pouvoir d'innover et retour à lordre dans l'Eglise ancienne (Paris: Cerf, 1992).
14.
See, for example, Noel E. Lenski, “Evidence for the Audientia Episcopalis in the New Letters of Augustine,” in Law, Society, and Authority in Late Antiquity, ed. Ralph W. Mathisen (Oxford and New York: Oxford University Press, 2001), 83–97; Claudia Rapp, Holy Bishops in Late Antiquity: The Nature of Christian Leadership in an Age of Transition (The Transformation of the Classical Heritage 37; Berkeley: University of California Press, 2005); Caroline Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford and New York: Oxford University Press, 2007); Kevin Uhalde, Expectations of Justice in the Age of Augustine (Philadelphia: University of Pennsylvania Press, 2007); Klaus M. Girardet, Kaisertum, Religionspolitik und das Recht von Staat und Kirche in der Spätantike (Antiquitas 56: Reihe 1, Abhandlungen zur alten Geschichte; Bonn: Habelt, 2009), and, especially, Caroline Humfress, “Bishops and Law Courts in Late Antiquity: How (Not) to Make Sense of the Legal Evidence,” Journal of Early Christian Studies 19 (2011): 375–400 and the bibliography therein.
15.
See Leslie Dossey, “Judicial Violence and Ecclesiastical Courts in Late Antique North Africa,” in Law, Society, and Authority in Late Antiquity, ed. Ralph W. Mathisen (Oxford and New York: Oxford University Press, 2001), 98–114 and, more recently, Julia Hillner, Prison, Punishment and Penance in Late Antiquity (Cambridge: Cambridge University Press, 2015).
16.
See, for example, Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), 191–211; eadem, “Resolving Disputes: The Frontiers of Law in Late Antiquity,” in Law, Society, and Authority in Late Antiquity, ed. Ralph W. Mathisen (Oxford and New York: Oxford University Press, 2001), 68–82, who described the arbitration procedures of the bishops’ courts, and the later discussions of Kate Cooper, “Christianity, Private Power, and the Law from Decius to Constantine: The Minimalist View,” Journal of Early Christian Studies 19 (2011): 327–43, and Jill Harries, Imperial Rome AD 284 to 363: The New Empire (Edinburgh History of Ancient Rome; Edinburgh: Edinburgh University Press, 2012), 229–54.
17.
Edoardo Volterra, Diritto romano e diritti orientali (Bologna: N. Zanichelli, 1937).
18.
Biondo Biondi, Il diritto romano cristiano (Milan: Giuffrè, 1952–1954).
19.
Gaudemet, L’Église dans l'empire romain: IVe–Ve siècles, 507–13; idem, “L'apport du droit romain à la patristique latine du IVe siècle,” in Miscellanea historiae ecclesiasticae VI, Congrès de Varsovie 1978. Section I: Les transformations dans la société chrétienne au IVe siècle (Bibliothèque de la Revue d'histoire ecclésiastique 67; Bruxelles: Nauwelaerts, 1983), 165–81.
20.
Judith Evans-Grubbs, Law and Family in Late Antiquity: The Emperor Constatntine's Marriage Legislation (Oxford: Oxford University Press, 1999), 172–83.
21.
See, for example, Hans Ankum, “La sponsa adultera: Problemes concernant l’accusatio adulterii en droit romain classique,” in Estudios de derecho romano en honor de Alvaro d'Ors I (Pampalona: Ediciones Universidad de Navarra S. A, 1987), 161–98, regarding betrothal, and Antti Arjava, Women and Law in Late Antiquity (Oxford: Clarendon Press, 1996), regarding women's status.
22.
David Hunt, “Christianizing the Roman Empire: The Evidence of the Code,” in The Theodosian Code, ed. Jill Harries and Ian Wood (Ithaca, NY: Cornell University Press, 1993), 143–58.
23.
For the latest study on the Syro-Roman Lawbook, see Yifat Monnickendam, “The Kiss and the Earnest: Early Roman Influences on Syriac Matrimonial Law,” Le Muséon 125 (2012): 307–34 and the bibliography therein. For other central works, see Walter Selb, Zur Bedeutung des syrisch-römischen Rechtsbuches (Münchener Beiträge zur Papyrusforschung und antiken Rechtsgeschichte 49; Munich: C. H. Beck, 1964); Arthur Vööbus, The Synodicon in the West Syrian Tradition (Corpus Scriptorum Christianorum Orientalium 367–8, 375–6; Louvain: Secrétariat du CorpusSCO, 1975–6); idem, The Syro-Roman Law Book: The Syriac Text of the Recently Discovered Manuscripts (Stockholm: ETSE, 1982–3); Walter Selb and Hubert Kaufhold, Das syrisch-römische Rechtsbuch, 3 vols. (Österreichischen Akademie der Wissenschaften, philosophisch-historische Klasse 295; Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 2002).
24.
For the latest review of scholarship regarding the identity of the composer, see Andrew S. Jacobs, “Papinian Commands One Thing, Our Paul Another: Roman Christians and Jewish Law in the Collatio legum mosaicarum et romanarum,” in Religion and Law in Classical and Christian Rome, ed. Clifford Ando and Jörg Rüpke (Potsdamer altertumswissenschaftliche Beiträge 15; Stuttgart: Steiner, 2006), 85–99; Robert M. Frakes, “The Religious Identity and Purpose of the Compiler of the Collatio legum mosaicarum et romanorum or Lex Dei,” in Religious Identity in Late Antiquity, ed. Robert M. Frakes and Elizabeth DePalma Digeser (Toronto: Edgar Kent, 2006), 126–47 and idem, Compiling the Collatio legum mosaicarum et romanarum in Late Antiquity (Oxford Studies in Roman Society and Law; Oxford and New York: Oxford University Press, 2011).
25.
Albert Gauthier, Roman Law and Its Contribution to the Development of Canon Law (Ottawa: Faculty of Canon Law Saint Paul University, 1996).
26.
Caroline Humfress, Multi-Legalism in Late Antiquity (212–565 CE) (Oxford Studies in Roman Society and Law; Oxford: Oxford University Press, forthcoming).
27.
David Wagschal, Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883 (Oxford Early Christian Studies; Oxford: Oxford University Press, 2014), 15–20.
28.
David Ibbetson, “What Is Legal History a History Of?” in Law and History, ed. Andrew Lewis and Michael Lobban (Current Legal Issues; Oxford and New York: Oxford University Press, 2003), 33–40.
29.
For a review of the scholarly trends, from the nineteenth century onward, with a special emphasis on German scholarship, see Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 1999), 115–30 and Laurens C. Winkel, “Roman Law in Its Intellectual Context,” in The Cambridge Companion to Roman Law, ed. David Johnston (New York: Cambridge University Press, 2015), 9–22, and, recently, Janne Pölönen, “Framing ‘Law and Society’ in the Roman World,” in The Oxford Handbook of Roman Law and Society, ed. Paul J. du Plessis, Clifford Ando and Kaius Tuori (Oxford: Oxford University Press, 2016), 8–20, who focused on the influence of the legal training and empirical analysis, or lack thereof, on the study of Roman law. For the relationship between legal history and comparative law, with regard to the study of Roman law, see James Gordley, “Comparative Law and Legal History,” in The Oxford Handbook of Comparative Law, ed. Reinhard Zimmermann and Mathias Reimann (Oxford: Oxford University Press, 2006), 753–73.
30.
See, especially, Georgy Kantor, “Ideas of Law in Hellenistic and Roman Legal Practice,” in Legalism: Anthropology and History, ed. Paul Dresch and Hannah Skoda (Oxford: Oxford University Press, 2012), 55–83, at 58–66.
31.
Max Kaser, Das römische Privatrecht, 2 vols. (Handbuch der Altertumswissenschaft 10.3.3; Munich: Beck, 1955).
32.
Leopold Wenger, Institutes of the Roman Law of Civil Procedure, rev. ed., trans. Otis Harrison Fisk (New York: Veritas Press, 1950); idem, Die Quellen des römischen Rechts (Österreichische Akademie Der Wissenschaften Denkschriften der Gesamtakademie 2; Vienna: A. Holzhausen, 1953) and, especially, the review of Hans Julius Wolff, “Roman Law as Part of Ancient Civilization: Reflections on Leopold Wenger's Last Work,” Traditio 11 (1955): 381–94.
33.
Franz Wieacker, Römische Rechtsgeschichte: Quellenkunde, Rechtsbildung, Jurisprudenz und Rechtsliteratur (Munich: C. H. Beck'sche Verlagsbuchhandlung, 1988), especially 4–59 regarding the history of scholarship and Wieacker's method.
34.
See, especially, the work of Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford: Clarendon Press, 1996).
35.
For a discussion on the rise of legal pluralism in the study of Roman law, see Kaius Tuori, “Legal Pluralism and the Roman Empire,” in Beyond Dogmatics: Law and Society in the Roman World, ed. John W. Cairns and Paul J. du Plessis (Edinburgh Studies in Law; Edinburgh: Edinburgh University Press, 2007), 39–52.
36.
Watson discusses this issue in four books, including Alan Watson, Legal Transplants: An Approach to Comparative Law (Edinburgh and London: Scottish Academic Press, 1974); idem, The Making of the Civil Law (Cambridge, MA: Harvard University Press, 1981); idem, Sources of Law, Legal Change, and Ambiguity (Philadelphia: University of Pennsylvania Press, 1984); and idem, Society and Legal Change, 2nd ed. (Philadelphia: Temple University Press, 2001), and reviews his claim in idem, “Legal Change: Sources of Law and Legal Culture,” University of Pennsylvania Law Review 131 (1983): 1121–57; idem, The Spirit of Roman Law (The Spirit of the Laws; Athens: University of Georgia Press, 1995); and idem, “Law and Society,” in Beyond Dogmatics: Law and Society in the Roman World, ed. John W. Cairns and Paul J. du Plessis (Edinburgh Studies in Law; Edinburgh: Edinburgh University Press, 2007), 9–35. Watson's approach was accepted by several scholars, for example, Bruce W. Frier, “Roman Law's Descent into History,” Journal of Roman Archeology 13 (2000): 446–48.
37.
David J. Bederman, Custom as a Source of Law (Cambridge and New York: Cambridge University Press, 2010), especially 16–22.
38.
Aldo Schiavone, The Invention of Law in the West, trans. Jeremy Carden and Antony Shugaar (Cambridge, MA: Belknap Press of Harvard University Press, 2012). This book was originally written in Italian in 2005 and translated into English by Jeremy Carden and Antony Shugaar. Upon its publication in English, Ari Bryen reviewed it, addressing the relationship between Schiavone's broad claims and the details. See Ari Bryen, “Aldo Schiavone, the Invention of Law in the West,” Bryn Mawr Classical Review (2012), http://bmcr.brynmawr.edu/2012/2012-06-16.html.
39.
Clifford Ando, “Law and the Landscape of Empire,” in Figures d'empire, fragments de mémoire: Pouvoirs et identités (Sociales et religieuses) dans le monde romain impérial (Ier S. av J.-C. - Ve s. ap. J.-C.), ed. Stéphane Benoist, Anne Daguet-Gagey and Christine Hoët-van Cauwenberghe (Paris: Septentrion, 2011), 25–47; idem, Law, Language, and Empire in the Roman Tradition (Empire and After; Philadelphia: University of Pennsylvania Press, 2011); idem, “Pluralism and Empire: From Rome to Robert Cover,” Critical Analysis of Law 1 (2014): 1–22. This description partially correlates with one of the founding studies of Roman law in modernity. In his book, Ancient Law, Sir Henry Maine describes the process whereby Roman law shifted from custom and natural law to standardization and systematization and from status to contract. See Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, 8th ed. (London: J. Murray, 1861).
40.
Caroline Humfress, “Law in Practice,” in A Companion to Late Antiquity, ed. Philip Rousseau and Jutta Raithel, (Blackwell Companions to the Ancient World; Chichester, UK and Malden, MA: Wiley-Blackwell, 2009), 377–91, at 381.
41.
Eadem, “Law and Custom under Rome,” in Law, Custom, and Justice in Late Antiquity and the Early Middle Ages: Proceedings of the 2008 Byzantine Colloquium, ed. Alice Rio (Centre for Hellenic Studies Occasional Publications 2; London: King's College London School of Humanities, 2011), 23–47; Jeroen Duindam et al, Law and Empire: Ideas, Practices, Actors (Rulers & Elites 3; Leiden and Boston: Brill, 2013), 1–22.
42.
Ari Bryen, “Law in Many Pieces,” Classical Philology 109 (2014): 346–65; idem, “When Law Goes off the Rails,or, Aggadah among the Iurisprudentes,” Critical Analysis of Law 3 (2016): 9–29.
43.
Lisa Pilar Eberle, “Law, Empire, and the Making of Roman Estates in the Provinces during the Late Republic,” Critical Analysis of Law 3 (2016): 50–69.
44.
Kantor, “Ideas of Law in Hellenistic and Roman Legal Practice,” esp. 80 ff.
45.
John Richardson, “Provincial Administration,” in The Oxford Handbook of Roman Law and Society, ed. Paul J. du Plessis, Clifford Ando and Kaius Tuori (Oxford: Oxford University Press, 2016), 111–23; Clifford Ando, “Legal Pluralism in Practice,” in ibid., 283–93.
46.
Caroline Humfress, “Laws’ Empire: Roman Universalism and Legal Practice,” in New Frontiers: Law and Society in the Roman World, ed. Paul J. du Plessis (Edinburgh: Edinburgh University Press, 2013), 73–101.
47.
For a survey of the state of research on this question, see Michael Gagarin, “The Unity of Greek Law,” in The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen (Cambridge and New York: Cambridge University Press, 2005), 29–40.
48.
See Edward M. Harris, “Did the Athenian Courts Attempt to Achieve Consistency? Oral Tradition and Written Records in the Athenian Administration of Justice,” in Politics of Orality, ed. Craig R. Cooper (Orality and Literacy in Ancient Greece 6; Leiden and Boston: Brill, 2007), 343–70 in response to Adriaan Lanni, “Arguing from Precedent: Modern Perspectives on Athenian Practice,” in The Law and the Courts in Ancient Greece, ed. Edward Monroe Harris and Lene Rubinstein (London: Duckworth, 2004), 159–71; Edward Monroe Harris, The Rule of Law in Action in Democratic Athens (Oxford: Oxford University Press, 2013); idem, Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics (Cambridge and New York: Cambridge University Press, 2006), 3–28, who claims that this phenomenon differentiates the archaic Greek law from the Near Eastern legal systems, and Mirko Canevaro, “Making and Changing Laws in Ancient Athens,” in Oxford Handbook of Ancient Greek Law, ed. Edward M. Harris and Mirko Canevaro (Oxford Handbooks Online, 2015), who describes archaic Greek law as a positivist legal system, utilizing works of modern legal theorists such as Joseph Raz.
49.
For a review of this question with a focus on Ptolemaic Egypt, see Hans-Albert Rupprecht, “Greek Law in Foreign Surroundings: Continuity and Development,” in The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen (Cambridge and New York: Cambridge University Press, 2005), 328–42, and on Greek papyri in general, see Elizabeth A. Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice (Cambridge: Cambridge University Press, 2004), 12–20.
50.
Joseph Mélèze Modrzejewski, “La règle de droit dans l’Égypte romaine (état des questions et perspectives de recherches),” in Proceedings of the Twelfth International Congress of Papyrology, ed. Devorah H. Samuel (American Studies in Papyrology 7; Toronto: A. M. Hakkert, 1970), 317–77; idem, “Law and Justice in Ptolemaic Egypt,” in Legal Documents of the Hellenistic World, ed. Markham Judah Geller and Herwig Maehler (London: The Warburg Institute, University of London, 1995), 1–19; idem, “What Is Hellenistic Law? The Documents of the Judaean Desert in the Light of the Papyri from Egypt,” in Law in the Documents of the Judaean Desert, ed. Ranon Katzoff and David M. Schaps (Supplements to the Journal for the Study of Judaism 96; Leiden and Boston: Brill, 2005), 7–21; Hans Julius Wolff, “Plurality of Law in Ptolemaic Egypt,” Revue internationale des droits de l'antiquité III, 7 (1960): 191–223; idem, “The Political Background of the Plurality of Laws in Ptolemaic Egypt,” in Proceedings of the Sixteenth International Congress of Papyrology, ed. Roger S. Bagnall et al. (American Studies in Papyrology 23; Ann Arbor: Scholars Press, 1981), 313–18; idem, Das Recht der griechischen Papyri Ägyptens in der Zeit der Ptolemaeer und des Prinzipats (Rechtsgeschichte des Altertums 5; Munich: C. H. Beck, 2002), 27–34. Cf. Raphael Taubenschlag, The Law of Greco-Roman Egypt in the Light of the Papyri, 332 B.C.–640 A.D. (New York: Herald Square Press, 1944), 1:14–37, who portrayed two legal systems, Greek and Egyptian, which influenced one another, but were also influenced, independently, by Roman law.
51.
While some scholars defined “custom” as unwritten law, Mélèze Modrzejewski and others rejected this claim. See Mélèze Modrzejewski, “La règle de droit dans l’Égypte romaine (état des questions et perspectives de recherches),” 320, n. 15 and further bibliography noted there.
52.
Ludwig Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs: Mit Beiträgen zur Kentniss des griechischen Rechts und der spätrömischen Rechtsentwicklung (Leipzig: Teubner, 1891).
53.
For a review of Levy's work and the criticism of the term vulgarrecht, mainly in the West, see Karlheinz Misera and Ralph Backhaus, “Ernst Levy und das Vulgarrecht,” in Semper Apertus: Sechshundert Jahre Ruprecht-Karls Universität Heidelberg 1386–1986, ed. Wilhelm Doerr et al. (Berlin and New York: Springer, 1985), 186–214, and Levy's main book on this topic, West Roman Vulgar Law: The Law of Property (Memoirs of the American Philosophical Society 29; Philadelphia: American Philosophical Society, 1951).
54.
Taubenschlag, The Law of Greco-Roman Egypt.
55.
Hans Julius Wolff, “Hellenistic Private Law,” in The Jewish People in the First Century, ed. Shemuel Safrai and Menahem Stern (Assen: Van Gorcum, 1974), 534–60; idem, Das Recht der griechischen Papyri Ägyptens 1, and further bibliography noted there. See, too, the review of Uri Yiftach-Firanko, “Review of H. J. Wolff, Das Recht der griechischen Papyri Ägyptens in der Zeit der Ptolemaeer und des Prinzipats. Erster Band. Bedingungen und Triebkräfte der Rechtsentwicklung (Munich 2002),” Scripta Classica Israelica 25 (2006): 173–76.
56.
Uri Yiftach-Firanko, Marriage and Marital Arrangements: A History of the Greek Marriage Document in Egypt, 4th Century BCE – 4th Century CE (Münchener Beiträge zur Papyrusforschung und Antiken Rechtsgeschichte; Munich: C. H. Beck, 2003), and especially Yiftach-Firanko's review in “Law in Graeco-Roman Egypt: Hellenization, Fusion, Romanization,” in The Oxford Handbook of Papyrology, ed. Roger S. Bagnall (Oxford and New York: Oxford University Press, 2009), 541–60.
57.
For a review and criticism on the scholarly discussion on vulgarrecht focusing on the western Roman Empire, see Detlef Liebs, “Roman Vulgar Law in Late Antiquity,” in Aspects of Law in Late Antiquity: Dedicated to A.M. Honoré on the Occasion of the Sixtieth Year of His Teaching in Oxford, ed. Adriaan Johan Boudewijn Sirks (Oxford: All Souls College, 2008), 35–53.
58.
For the latest review of scholarship on volksrecht and its relation to reichsrecht, see Anna Dolganov, “Reichsrecht and Volksrecht in Theory and Practice: Roman Justice in the Province of Egypt (P. Oxy. II 237, P. Oxy. IV 706, SB XII 10929),” in Administration, Law and Administrative Law. Proceedings of the 2nd International Conference of the NFN Imperium and Officium, ed. Heather Baker, Michael Jursa and Hans Täuber (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, forthcoming).
59.
The definition of Greek legal traditions as vulgar law (thus implying corruption of Roman law, rather than an independent legal tradition) was heavily criticized. See Dieter Simon, “Marginalien zur Vulgarismusdiskussion,” in Festschrift für Franz Wieacker zum 70. Geburtstag, ed. Okko Behrends et al. (Göttingen: Vandenhoeck und Ruprecht, 1978), 154–74 in response to Franz Wieacker, Vulgarismus und Klassizismus im Recht der Spätantike (Heidelberg: C. Winter, 1955).
60.
Humfress, “Laws’ Empire” and, recently, William P. Sullivan, “Consent in Roman Choice of Law,” Critical Analysis of Law 3 (2016): 157–74; Georgy Kantor, “Local Law in Asia Minor after the Constitutio Antoniniana,” in Citizenship and Empire in Europe 200–1900, ed. Clifford Ando (Stuttgart: Franz Steiner Verlag, 2016), 45–62.
61.
Louis Gernet, “Introduction a l’étude de droit grec ancien,” Archives d'histoire du droit oriental 2 (1938): 261–92. For the definition “caractère pluraliste,” see 283. Wolff later used a similar term, as cited above, n. 55.
62.
For a survey on the rise of social Roman history, see Susan Treggiari, “Roman Social History: Recent Interpretations,” Histoire sociale / Social History 8 (1975): 149–64, Frier, “Roman Law's Descent into History,” and Michael Peachin, “Introduction,” in The Oxford Handbook of Social Relations in the Roman World, ed. Michael Peachin (Oxford and New York: Oxford University Press, 2011), 3–36. Recently, Ulrike Babusiaux, “The Future of Legal History: Roman Law,” American Journal of Legal History 56 (2016): 6–11, related the rise in the use of cultural and social history in the study of Roman law specifically among English-speaking scholars.
63.
John W. Cairns and Paul J. du Plessis, “Introduction: Themes and Literature,” in Beyond Dogmatics: Law and Society in the Roman World, ed. John W. Cairns and Paul J. du Plessis (Edinburgh Studies in Law; Edinburgh: Edinburgh University Press, 2007), 3–8; Paul J. du Plessis, “Introduction,” in New Frontiers: Law and Society in the Roman World, ed. Paul J. du Plessis (Edinburgh: Edinburgh University Press, 2013), 1–5.
64.
John Anthony Crook, Law and Life of Rome (Ithaca, New York: Cornell University Press, 1967).
65.
Susan Treggiari, Roman Marriage, Iusti Coniuges from the Time of Cicero to the Time of Ulpian (Oxford: Clarendon Press, 1991); Richard P. Saller, Patriarchy, Property, and Death in the Roman Family (Cambridge Studies in Population, Economy, and Society in Past Time 25; Cambridge: Cambridge University Press, 1994); Jill Harries, Law and Crime in the Roman World (Key Themes in Ancient History; Cambridge and New York: Cambridge University Press, 2007), and Joëlle Beaucamp, Le statut de la femme à Byzance (4e–7e Siècle), 2 vols. (Travaux et mémoires du centre de recherche d'histoire et civilisation de Byzance. Monographies 6; Paris: De Boccard, 1990), who used Greek legal papyri in her study on the status of women.
66.
Harries, Law and Empire in Late Antiquity.
67.
David Johnston, Roman Law in Context (Key Themes in Ancient History; Cambridge and New York: Cambridge University Press, 1999). The expansion of the study of legal history to methods from social history and legal theory has also influenced the study of early Greek law, albeit to a lesser extent, as David Cohen noted, and called for a wider change. See David Cohen, “Greek Law: Problems and Methods,” Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Römanistische Abteilung 106 (1989): 81–105.
68.
Thomas A. McGinn, Prostitution, Sexuality, and the Law in Ancient Rome (New York and Oxford: Oxford University Press, 1998). For a review and further bibliography on the study of Roman law in its social context, see Janne Pölönen, “The Case for a Sociology of Roman Law,” in Law and Sociology, ed. Michael D. A. Freeman (Current Legal Issues; Oxford and New York: Oxford University Press, 2005), 398–408, and Dennis P. Kehoe, “Law and Social Formation in the Roman Empire,” in The Oxford Handbook of Social Relations in the Roman World, ed. Michael Peachin (Oxford and New York: Oxford University Press, 2011), 144–63.
69.
Eugen Ehrlich, Grundlegung der Soziologie des Rechts (Munich: Duncker & Humblot, 1913). For the first edition of the English translation, see idem, Fundamental Principles of the Sociology of Law, trans. Walter L Moll (Cambridge: Harvard University Press, 1936). For a discussion on Ehrlich's living law and its relation to legal pluralism, see David Nelken, “Eugen Ehrlich, Living Law, and Plural Legalities,” Theoretical Inquiries in Law 9 (2008): 443–71, and the edited collection of Marc Hertogh, Living Law: Reconsidering Eugen Ehrlich (Onati International Serices in Law and Society; Oxford and Portland: Hart Publishing, 2009).
70.
For the latest review of the history and development of legal pluralism and further bibliography, see Brian Z. Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global,” Sydney Law Review 30 (2008): 375–411 and, earlier, Anne Griffiths, “Legal Pluralism,” in An Introduction to Law and Social Theory, ed. Reza Banakar and Max Travers (Oxford: Hart, 2002), 289–310. For earlier works that discussed co-existing legal systems, especially in a post-colonial context, yet without undermining the centralist concept of law see, especially, Michael B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford: Clarendon Press, 1975).
71.
Earlier phases of the influence of legal anthropology on jurisprudence can be seen in the dialogue between legal pluralism and American realism at the beginning of the twentieth century. See Kaius Tuori, Lawyers and Savages: Ancient History and Legal Realism in the Making of Legal Anthropology (Abingdon, NY: Routledge, 2014).
72.
For the main proponents of legal positivism, see Hans Kelsen, Introduction to the Problems of Legal Theory, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 1992); idem, General Theory of Law and State, trans. Anders Wedberg (20th Century Legal Philosophy Series 1; Cambridge, MA: Harvard University Press, 1945); H. L. A. Hart, The Concept of Law (Clarendon Law Series; Oxford: Clarendon Press, 1961); and, later, Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford and New York: Oxford University Press, 1979). For a brief review of legal positivism, see Brian H. Bix, “Legal Positivism,” in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P. Golding and William A. Edmundson (Blackwell Philosophy Guides; Malden, MA: Blackwell Publishing, 2005), 29–49 and Jules L. Coleman and Brian Leiter, “Legal Positivism,” in A Companion to Philosophy of Law and Legal Theory, ed. Dennis M. Patterson (Oxford, UK and Malden, MA: Blackwell Publishers, 2008), 228–48.
73.
John Griffiths, “What Is Legal Pluralism?” Legal Pluralism & Unofficial Law 24 (1986): 1–55, at 38.
74.
Sally Falk Moore, Law as Process: An Anthropological Approach (London: Routledge & Kegal Paul, 1978), 54 ff.
75.
Marc Galanter, “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law,” The Journal of Legal Pluralism and Unoffical Law 19 (1981): 1–47. For the ideological significance of Galanter's article, and a review of further scholarship on legal pluralism, see Mitra J. Sharafi, “Justice in Many Rooms since Galanter: De-Romanticizing Legal Pluralism through the Cultural Defense,” Law and Contemporary Problems 71 (2008): 139–46. For further discussion regarding earlier developments in the study of legal pluralism and indigenous law, see Tuori, Lawyers and Savages, 150–83.
76.
See, for example, Boaventura de Sousa Santos, “A Map of Misreading. Toward a Postmodern Conception of Law,” Journal of Law and Society 14 (1987): 279–302; idem, Toward a New Legal Common Sense: Law, Globalization and Emancipation, 2nd ed (Law in Context; London: Butterworths LexisNexis, 2002). His definition includes most regulated procedures and normative standards, thus blurring the difference between law and any other social behavior. See also studies of Perry Dane, “The Maps of Sovereignty: A Meditation,” Cardozo Law Review 12 (1990–1991): 959–1006, who discussed sovereignty in the relationship between state law and non-state law in the American-Indian context.
77.
Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22 (1988): 869–96 and the response of Franz von Benda-Beckmann, “Comment on Merry,” ibid., 897–902.
78.
For a review, see Paul Schiff Berman, “The New Legal Pluralism,” Annual Review of Law and Social Science 5 (2009): 225–42 and, most recently, Michael A. Helfand, Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism (ASIL Studies in International Legal Theory; Cambridge: Cambridge University Press, 2015).
79.
Simon Roberts, “After Government? On Representing Law without the State,” The Modern Law Review 68 (2005): 1–24, at 3, and see his earlier criticism of legal pluralism: “Against Legal Pluralism: Some Reflections on the Contemporary Enlargement of the Legal Domain,” The Journal of Legal Pluralism and Unoffical Law 30 (1998): 95–106.
80.
Brian Z. Tamanaha, “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism,” Journal of Law and Society 20 (1993): 192–217; idem, “An Analytical Map of Social Scientific Approaches to the Concept of Law,” Oxford Journal of Legal Studies 15 (1995): 501–35. For further survey on the objection to legal pluralism, see Franz von Benda-Beckmann, “Who's Afraid of Legal Pluralism?” Legal Pluralism & Unofficial Law 47 (2002): 37–82.
81.
Brian Z. Tamanaha, “A Non-Essentialist Version of Legal Pluralism,” Journal of Law and Society 27 (2000): 296–321; idem, “Understanding Legal Pluralism.”
82.
See, for example, William Twining. In a series of studies, he called for an expansion of the concept of law and extended use of social sciences for a better comparative study of diffusion law: William Twining, “Diffusion of Law: A Global Perspective,” Legal Pluralism & Unofficial Law 49 (2004): 1–45; idem, “Social Science and Diffusion of Law,” Journal of Law and Society 32 (2005): 203–40; idem, “Diffusion and Globalization Discourse,” Harvard International Law Journal 47 (2006): 507–16. In a later study, Twining offers to treat legal pluralism as a species of normative pluralism. See idem, “Normative and Legal Pluralism: A Global Perspective,” Duke Journal of Comparative and International Law 20 (2010): 473–517.
83.
John Griffiths, “The Idea of Sociology of Law and its Relation to Law and to Sociology,” in Law and Sociology, ed. Michael Freeman (Current Legal Issues; Oxford: Oxford University Press, 2005), 49–68.
84.
Griffith's acceptance of custom as a source of centralist law is similar to the debate over common law as a legal system. Custom is the main identifier of common law, which differentiates it from statute law. While the acceptance of custom as a source of law led A. W. Brian Simpson, Legal Theory and Legal History: Essays on the Common Law (London and Ronceverte: Hambledon Press, 1987) to claims that it is not a positivist legal system, others, such as Gerald J Postema, “Classical Common Law Jurisprudence (Part 1),” Oxford University Commonwealth Law Journal 2 (2002): 155–80, claimed that even if the legal system heavily draws from customs, it is nevertheless authoritative, systematic and centralist. For further reading on the history of the centralization of common law, see idem, “Classical Common Law Jurisprudence (Part II),” Oxford University Commonwealth Law Journal 3 (2003): 1–28; on the attempt to describe the legal theory underlying common law and its relationship to positivist legal theories, see idem, “Philosophy of the Common Law,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules L Coleman and Scott Shapiro (New York: Oxford University Press, 2002), 588–622 and the review of Bederman, Custom as a Source of Law, 27–41.
85.
For a relatively recent survey, see Margaret Davies, “Legal Pluralism,” in The Oxford Handbook of Empirical Legal Research, ed. Peter Cane and Herbert M. Kritzer (Oxford: Oxford University Press, 2010), 805–27. For the relationship between legal theory, especially that of Hart, and empirical legal studies, see Denis J. Galligan, “Legal Theory and Emprical Research,” in ibid., 976–1001.
86.
Robert Cover, “The Supreme Court, 1982 Term - Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983–1984): 4–68.
87.
Mark DeWolfe Howe, “The Supreme Court, 1952 Term,” ibid. 67 (1953): 91–179. For further discussion on Cover's claim as part of a theory of law, see Franklin G. Snyder, “Nomos, Narrative, and Adjudication: Toward a Jurisgenetic Theory of Law,” William and Mary Law Review 40 (1998–1999): 1623–729.
88.
For similar phenomena in Hindu law, see Donald R. Davis, “Centres of Law: Duties, Rights and Jurisdictional Pluralism in Medieval India,” in Legalism: Anthropology and History, ed. Paul Dresch and Hannah Skoda (Oxford: Oxford University Press, 2012), 85–113.
89.
For the relations between halakha and Mishpat Ivri in the history of scholarship, and further bibliography, see Haim Hermann Cohn, “The Methodology of Jewish Law: A Secularist View,” in Modern Research in Jewish Law, ed. Bernard S. Jackson (The Jewish Law Annual Supplement 1; Leiden: Brill, 1980), 123–35; Shalom Albeck, “Law and History in Halakhic Research,” in ibid., 1–20; Izhak Englard, “Research in Jewish Law: Its Nature and Function,” in ibid., 21–65 and the response of Menachem Elon, “More about Research into Jewish Law” in ibid., 66–111 or “עוד לעניין מחקרו של המשפט העברי,” Mishpatim 8 (1977): 99–137; Baruch Shiber, “The Albeck System in Talmudic Research,” in Jackson, Modern Research in Jewish Law, 112–22; Shmuel Shilo, “The Contrast between Mishpat Ivri and Halakah,” Tradition 20 (1982): 91–100; Bernard S. Jackson et al., “Halacha and Law,” in The Oxford Handbook of Jewish Studies, ed. Martin Goodman (Oxford: Oxford University Press, 2002), 643–79, and his earlier discussion which focuses on the relationship between dogmatic and historical study of law. See Bernard S. Jackson, “History, Dogmatics and Halakhah,” in Jewish Law in Legal History and the Modern World, ed. Bernard S. Jackson (The Jewish Law Annual Supplement; Leiden: Brill, 1980), 1–26.
90.
Menachem Elon, “The Scientific Research of Jewish Law,” in Studies in Judaism: Jubilee Volume Presented to David Kotlar, ed. Alfredo Mordechai Rabello (Tel Aviv: Am Hassefer, 1975), 147–60; idem, Jewish Law: History, Sources, Principles, trans. Bernard Auerbach and Melvin J. Sykes, 4 vols. (Philadelphia and Jerusalem: The Jewish Publication Society, 1994), and the discussion of Alan J. Yuter, “Legal Positivism and Contemporary Halakhic Discourse,” Jewish Law Annual 6 (1987): 55–70 on the controversy between Elon and Englard in light of Kelsen's legal theory. See also the description of Assaf Likhovski, “The Invention of ‘Hebrew Law’ in Mandatory Palestine,” The American Journal of Comparative Law 46 (1998): 339–73, regarding the historical context of the Mishpat Ivri movement and its goals in reviving Jewish law, and his description of current trends in the study of Jewish Law in “Recent Trends in the Study of the Intellectual History of Law and Jewish Law,” Diné Israel 32 (forthcoming).
91.
Eliav Shochetman, מעשה הבא בעבירה (Jerusalem: Mossad Harav Kook, 1981), 17–21.
92.
Hanina Ben Menahem, Judicial Deviation in Talmudic Law, Governed by Men, Not by Rules, ed. Neil S. Hecht (Jewish Law in Context 1; New York: Harwood Academic Publishers, 1991), 7–8.
93.
Bernard S. Jackson, “Modern Research in Jewish Law,” in Modern Research in Jewish Law, 136–57; idem, “Secular Jurisprudence and the Philosophy of Jewish Law: A Commentary on Some Recent Literature,” Jewish Law Annual 6 (1987): 3–44; idem, “Mishpat Ivri, Halakhah and Legal Philosophy: Agunah and the Theory of ‘Legal Sources,’” Jewish Studies, an Internet Journal 1 (2002): 69–107.
94.
Idem, “Jewish Law or Jewish Laws,” Jewish Law Annual 8 (1989): 15–34; idem, “Judaism as a Religious Legal System,” in Religion, Law and Tradition: Comparative Studies in Religious Law, ed. Andrew Huxley (London and New York: RoutledgeCurzon, 2002), 34–48 and, similarly, Hanina Ben Menahem, “Postscript: The Judicial Process and the Nature of Jewish Law,” in An Introduction to the History and Sources of Jewish Law, ed. Neil S. Hecht et al. (Oxford: Clarendon Press, 1996), 421–37.
95.
Suzanne Last Stone, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” Harvard Law Review 106 (1993): 813–94.
96.
Robert Cover, נומוס ונראטיב, trans. Aviad Shatir (Jerusalem: Shalem Press, 2012). See, especially, the introduction of Joseph David to the Hebrew translation where he surveys the importance of this essay to various fields of scholarship.
97.
See, for example, Steven D. Fraade, “Navigating the Anomalous: Non-Jews at the Intersection of Early Rabbinic Law and Narrative,” in The Other in Jewish Thought and History: Constructions of Jewish Culture and Identity, ed. Laurence J. Silberstein and Robert L. Cohn (New Perspectives on Jewish Studies; New York: New York University Press, 1994), 145–65; idem, “Nomos and Narrative before Nomos and Narrative,” Yale Journal of Law and the Humanities, 17 (2005): 81–96; idem, “Law, History, and Narrative in the Damascus Document,” Meghillot 5–6 (2008): *35–*55; Beth A. Berkowitz, “Negotiating Violence and the Word in Rabbinic Law,” Yale Journal of Law and the Humanities 17 (2005): 125–50; Richard Hidary, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud (Brown Judaic Studies 353; Providence, RI: Brown Judaic Studies, 2010), especially 9–13; Christine E. Hayes, What's Divine about Divine Law? Early Perspectives (Princeton: Princeton University Press, 2015), 51–53 and the work of Suzanne Last Stone, “Sinaitic and Noahide Law: Legal Pluralism in Jewish Law,” Cardozo Law Review 12 (1991): 1157–214 regarding the Noahide laws.
98.
See, for example, eadem, “Rabbinic Legal Magic: A New Look at Honi's Circle as the Construction of Law's Space,” Yale Journal of Law and the Humanities 17 (2005): 97–123; Barry S. Wimpfheimer, Narrating the Law: A Poetics of Talmudic Legal Stories (Divinations: Rereading Late Ancient Religion; Philadelphia: University of Pennsylvania Press, 2011); Jane L. Kanarek, Biblical Narrative and the Formation of Rabbinic Law (New York: Cambridge University Press, 2014); Natalie B. Dohrmann, “Means and End(ing)s: Nomos Versus Narrative in Early Rabbinic Exegesis,” Critical Analysis of Law 3 (2016): 30–49. For a review and further literature on the use of narrative theory in halakhic texts, see Steven D. Fraade, “Ancient Jewish Law and Narrative in Comparative Perspective: The Damascus Document and the Mishnah,” Diné Israel 24 (2007): 65–99, and Moshe Simon-Shoshan, Stories of the Law: Narrative Discourse and the Construction of Authority in the Mishnah (New York: Oxford University Press, 2012).
99.
The only studies known to me on early Islamic and Roman law that mention this article are Holger M. Zellentin, The Qur’ān's Legal Culture: The Didascalia Apostolorum as a Point of Departure (Tübingen: Mohr Siebeck, 2013), 17 ff, which discusses early Islamic law, and Ando, “Pluralism and Empire,” which discusses Roman law. Recently, however, Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016), discussed modern scholarship of Islamic law in relation to positivism and legal pluralism.
100.
For the two recent monographs on this topic, see Paul Heger, The Pluralistic Halakhah: Legal Innovations in the Late Second Commonwealth and Rabbinic Periods (Studia Judaica; Berlin and New York: Walter de Gruyter, 2003); Hidary, Dispute for the Sake of Heaven and his review of previous scholarship, ibid., 13–31, as well as the works listed most recently by Hayes, What's Divine about Divine Law? 174–5. For an earlier survey on the concept of halakha and its wide scope, see Shmuel Safrai, “Halakha,” in The Literature of the Sages, ed. Shmuel Safrai (Assen: Van Gorcum, 1987), 121–210.
101.
Ben Menahem, Judicial Deviation in Talmudic Law, 55–98; Hidary, Dispute for the Sake of Heaven.
102.
Ibid., 127–61.
103.
Steven D. Fraade, “Rabbinic Polysemy and Pluralism Revisited: Between Praxis and Thematization,” AJS Review 31 (2007): 1–40. In this study, Fraade rejects Boyarin's claim that the polysemy is stammaic and results from Christian Orthodoxy. See Daniel Boyarin, Border Lines: The Partition of Judaeo-Christianity (Divinations; Philadelphia, PA: University of Pennsylvania Press, 2004). Fraade's claim was rejected by Azzan Yadin-Israel, “Rabbinic Polysemy: A Response to Steven Fraade,” AJS Review 38 (2014): 129–41 and responded to by Steven D. Fraade, “Response to Azzan Yadin-Israel on Rabbinic Polysemy: Do They ‘Preach’ What They Practice?” ibid., 339–61.
104.
Steven D. Fraade, “A Heart of Many Chambers”: The Theological Hermeneutics of Legal Multivocality,” Harvard Theological Review 108 (2015): 113–28.
105.
Hanina Ben Menahem, “Is There Always One Uniquely Correct Answer to a Legal Question in the Talmud?” Jewish Law Annual 6 (1987): 164–75. See also David Kraemer, The Mind of the Talmud: An Intellectual History of the Bavli (New York: Oxford University Press, 1990).
106.
Christine E. Hayes, “Legal Truth, Right Answers and Best Answers: Dworkin and the Rabbis,” Diné Israel 25 (2008): 73–121. Hayes’ monistic claim was challenged by Richard Hidary, “Right Answer Revisited: Monism and Pluralism in the Talmud,” Diné Israel 26–27 (2009–2010): 229*–55*. She answered the claim by distinguishing between theoretical and practical pluralism. See Christine E. Hayes, “Theoretical Pluralism in the Talmud: A Response to Richard Hidary,” ibid., 257*–307*.
107.
Hayes, What's Divine about Divine Law? 169–245.
108.
Ben Menahem, Judicial Deviation in Talmudic Law.
109.
Moshe Halbertal, Interpretative Revolutions in the Making: Values as Interpretative Considerations in Midrashe Halakhah (Jerusalem: Magnes, 1999). For similar discussions on modern halakha, see Joseph Isaac Lifshitz, “Essentialist Influences on the Halakha,” in Halakhah: Explicit and Implied Theoretical and Ideological Aspects, ed. Avinoam Roznaek (Jerusalem: Magnes, 2012), 15–39.
110.
Elana Stein, “Rabbinic Legal Loopholes: Formalism, Equity and Subjectivity” (PhD diss., Columbia University, 2014).
111.
See, for example, Yitzhak D. Gilat, Studies in the Development of the Halakha (Jerusalem: Bar-Ilan University Press, 1994), 183–90 and Moshe Halbertal, People of the Book: Canon, Meaning, and Authority (Cambridge, MA and London: Harvard University Press, 1997), 45–89.
112.
Norman Lamm and Aaron Kirschenbaum, “Freedom and Constraint in the Jewish Judicial Process,” Cardozo Law Review 1 (1979): 99–133; David Novak, Natural Law in Judaism (Cambridge, UK and New York: Cambridge University Press, 1998), and the response of Bernard S. Jackson, “The Jewish View of Natural Law,” Journal of Jewish Studies 52 (2001): 136–45.
113.
Yonatan Adler, “Toward an ‘Archaeology of Halakhah’: Prospects and Pitfalls of Reading Early Jewish Ritual Law into the Ancient Material Record,” Achaeology and Text 1 (2017): 27–38. See also Yair Furstenberg, “Complex Purity: Between Continuity and Diversity in Ancient Judaism,” Archaeology and Text 1 (2017): 115–31 in response to Stuart S. Miller, At the Intersection of Texts and Material Finds: Stepped Pools, Stone Vessels and Ritual Purity among the Jews of Roman Galilee (Göttingen: Vandenhoeck & Ruprecht, 2015).
114.
For a review of the study of law in early Christianity and the influence of the religious identity of the scholars on these studies, see Peter Richardson, “Law and Religion: Origins and Present State,” in Law in Religious Communities in the Roman Period: The Debate over Torah and Nomos in Post-Biblical Judaism and Early Christianity, ed. Peter Richardson and Stephen Westerholm (Studies in Christianity and Judaism = Études sur le Christianisme et le Judaisme 4; Waterloo, Ontario: Wilfrid Laurier University Press, 1991), 1–18.
115.
For earlier works, see, for example, David Daube, Collected Works of David Daube, vol. 2 (Studies in Comparative Legal History; Berkeley, CA: Robbins Collection, 1992–2014), and the response of Dieter Nörr, “Die Evangelien des Neuen Testaments und die sogenannte hellenistische Rechtskoine,” Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Römanistische Abteilung 78 (1961): 92–141, who emphasized the Hellenistic legal traditions in the New Testament.
116.
J. Duncan M. Derrett, Law in the New Testament (London: Darton, Longman & Todd, 1970). For later studies, see Herbert W. Basser, Studies in Exegesis: Christian Critiques of Jewish Law and Rabbinic Responses, 70–300 C.E. (The Brill Reference Library of Ancient Judaism; Leiden and Boston: Brill, 2000); Bernard S. Jackson, Essays on Halakhah in the New Testament (Jewish and Christian Perspectives Series 16; Leiden and Boston: Brill, 2008); James G. Crossley, The New Testament and Jewish Law: A Guide for the Perplexed (London and New York: T & T Clark, 2010), and the latest review of scholarship on halakha in the New Testament by Peter J. Tomson, “Halakhah in the New Testament: A Research Overview,” in The New Testament and Rabbinic Literature, ed. Reimund Bieringer et al. (Supplements to the Journal for the Study of Judaism 136; Leiden and Boston: Brill, 2010), 136–206. The following references are merely a small representative selection from this vast literature.
117.
Ed Parish Sanders, Jewish Law from Jesus to the Mishnah (London: SCM Press, 1990); idem, “When is a Law a Law? The Case of Jesus and Paul,” in Religion and Law: Biblical-Judaic and Islamic Perspectives, ed. Edwin B. Firmage, Bernard G. Weiss and John W. Welch (Winona Lake: Eisenbrauns, 1990), 139–58, and the response of Jacob Neusner, Judaic Law from Jesus to the Mishnah: A Systematic Reply to Professor E. P. Sanders (South Florida Studies in the History of Judaism 84; Atlanta: Scholars Press, 1993).
118.
For example, Lutz Döring, who devoted his dissertation and following studies to the Sabbath in the various Second Temple sources, among them the New Testament. See Lutz Döring, Schabbat: Sabbathalacha und Praxis im Antiken Judentum und Urchristentum (Texts and Studies in Ancient Judaism 78; Tübingen: Mohr Siebeck, 1999); idem, “Much Ado About Nothing? Jesus’ Sabbath Healings and Their Halakhic Implications Revisited,” in Judaistik und neutestamentliche Wissenschaft: Standorte, Grenzen, Beziehungen, ed. Lutz Döring, Hans-Günther Waubke, and Florian Wilk (Forschungen zur Religion und Literatur des Alten und Neuen Testaments; Göttingen: Vandenhoeck & Ruprecht, 2008); idem, “Sabbath Laws in the New Testament Gospels,” in Bieringer et al., The New Testament and Rabbinic Literature, 207–53 and, earlier, Menahem Kister, “Plucking on the Sabbath and Christian-Jewish Polemic,” Immanuel 24–25 (1990): 35–51.
119.
Friedrich Avemarie, “Jesus and Purity,” in Bieringer et al., The New Testament and Rabbinic Literature, 255–79, and the response of Thomas Kazen, “Jesus and Purity,” in Jesus, Scripture and Paradosis: Response to Friedrich Avemarie, ed. Reimund Bieringer, et al. (Supplements to the Journal for the Study of Judaism 136; Leiden and Boston: Brill, 2010), 281–28; idem, Jesus and Purity Halakhah: Was Jesus Indifferent to Impurity? (Coniectanea Biblica: New Testament Series; Winona Lake: Eisenbrauns, 2010). See also Yair Furstenberg, “Defilement Penetrating the Body: A New Understanding of Contamination in Mark 7.15,” New Testament Studies 54 (2008): 176–200.
120.
Menahem Kister, “Divorce, Reproof and Other Sayings in the Synoptic Gospels: Jesus Traditions in the Context of ‘Qumranic’ and Other Texts,” in Text, Thought, and Practice in Qumran and Early Christianity: Proceedings of the Ninth International Symposium of the Orion Center for the Study of the Dead Sea Scrolls and Associated Literature, Jointly Sponsored by the Hebrew University Center for the Study of Christianity, 11–13 January, 2004, ed. Ruth A. Clements and Daniel R. Schwartz (Studies on the Texts of the Desert of Judah 84; Leiden and Boston: Brill, 2009), 195–229 and Peter J. Tomson, “Divorce Halakhah in Paul and the Jesus Tradition,” in Bieringer et al, The New Testament and Rabbinic Literature, 289–33, who also included a review of previous research.
121.
Robert Banks, Jesus and the Law in the Synoptic Tradition (Society for New Testament Studies: Monograph Series 28; Cambridge: Cambridge University Press, 1975); Ed Parish Sanders, Jesus and Judaism (Philadelphia: Fortress Press, 1985), 245–69; John P. Meier, A Marginal Jew: Rethinking the Historical Jesus, vol. 4 (The Anchor Yale Bible Reference Library; New Haven and London: Yale University Press, 2009).
122.
For some of these studies and further references, see Ed Parish Sanders, Paul, the Law and the Jewish People (Philadelphia: Fortress Press, 1983); Peter J. Tomson, Paul and the Jewish Law: Halakha in the Letters of the Apostle to the Gentiles (Compendia Rerum Iudaicarum ad Novum Testamentum 3, 1; Assen: Van Gorcum, 1990); In-Gyu Hong, The Law in Galatians (Journal for the study of the New Testament, Supplement Series 81; Sheffield: Sheffield Academic Press, 1993), especially 11–15; the collection edited by James D. J. Dunn, Paul and the Mosaic Law: The Third Durham-Tübingen Research Symposium on Earliest Christianity and Judaism (Durham, September, 1994) (Wissenschaftliche Untersuchungen zum Neuen Testament 89; Tübingen: Mohr Siebeck, 1996), and its bibliographical list, 335–41; Heikki Räisänen, Paul and the Law (Tübingen: Mohr Siebeck, 1983); idem, Jesus, Paul and Torah: Collected Essays (Journal for the Study of the New Testament Supplement Series 43; Sheffield: JSOT Press, 1992), and the review of Philip S. Alexander, “Jewish Law in the Time of Jesus: Towards a Clarification of the Problem,” in Law and Religion: Essays on the Place of the Law in Israel and Early Christianity, ed. Barnabas Lindars (Cambridge: James Clarke & Co, 1988), 44–58.
123.
Lawrence H. Schiffman, “Jewish Law in the Gospels and the Dead Sea Scrolls,” Meghillot 4 (2006): 141–50.
124.
For a review of scholarship on Hellenistic Judaism in the New Testament, see Tomson, Paul and the Jewish Law, and a later collection of studies, edited by Peder Borgen and Søren Giversen, The New Testament and Hellenistic Judaism (Aarhus: Aarhus University Press, 1995). The claim that the study of law in the New Testament has to take into consideration the diverse aspects of Jewish law was raised by Alexander, “Jewish Law in the Time of Jesus.”
125.
James G. Crossley, The Date of Mark's Gospel: Insight from the Law in Earliest Christianity (Journal for the Study of the New Testament Supplement Series 266; London and New York: T & T Clark International, 2004).
126.
William R. G. Loader, Jesus’ Attitude Towards the Law: A Study of the Gospels (Wissenchaftliche Untersuchungen zum Neuen Testament, 2 Reihe, 97; Tübingen: Mohr Siebeck, 1997).
127.
Stephen G. Wilson, Luke and the Law (Society for New Testament Studies, Monograph Series 50; Cambridge: Cambridge University Press, 1983).
128.
See, for example, Otto Eger, “Rechtwörter und Rechtsbilder in den paulinischen Briefen,” Zeitschrift für die neutestamentliche Wissenschaft und die Kunde der älteren Kirche 18 (1918): 84–108, who focused on a comparison to the papyri, and A. N. Sherwin-White, Roman Society and Roman Law in the New Testament (The Sarum Lectures, 1960–1961; Oxford: Clarendon Press, 1963); Haim Hermann Cohn, The Trial and Death of Jesus (New York: Harper & Row, 1971).
129.
Alan Watson, Jesus and the Law (Athens: University of Georgia Press, 1996). This work is part of his larger research on Jesus, which also mentions legal issues; see idem, Jesus and the Jews: The Pharisaic Tradition in John (Athens: University of Georgia Press, 1995); idem, The Trial of Jesus (Athens: University of Georgia Press, 1995); idem, The Trial of Stephen: The First Christian Martyr (Athens: University of Georgia Press, 1996); idem, Law out of Context (Athens: University of Georgia Press, 2000), 44–65.
130.
For an example regarding Yom Kippur, see Daniel Stökl Ben Ezra, “The Biblical Yom Kippur, the Jewish Fast of the Day of Atonement and the Church Fathers,” Studia Patristica 34 (2001): 493–502; idem, The Impact of Yom Kippur on Early Christianity: The Day of Atonement from Second Temple Judaism to the Fifth Century (Wissenschaftliche Untersuchungen zum Neuen Testament 163; Tübingen: Mohr Siebeck, 2003). For an example regarding the Sabbath, see Shaye J. D. Cohen, “Sabbath Law and Mishnah Shabbat in Origen's De principiis,” Jewish Studies Quarterly 17 (2010): 160–89. For an example regarding Jewish purity laws, see Peter J. Tomson, “Jewish Purity Laws as Viewed by the Church Fathers and by the Early Followers of Jesus,” in Purity and Holiness: The Heritage of Leviticus, ed. Marcel Poorthuis and Joshua Schwartz (Jewish and Christian Perspectives Series 2; Leiden and Boston: Brill, 2000), 73–91. For a discussion regarding observance of menstrual purity, see Annette Yoshiko Reed, “Parting Ways over Blood and Water? Beyond ‘Judaism’ and ‘Christianity’ in the Roman near East,” in La croisée des chemins Revisitée: Quand l’“Eglise” et la “Synagogue” se sont–elles distinguées? ed. Simon C. Mimouni and Bernard Pouderon (Paris: Editions de Cerf, 2012), 227–59.
131.
Mueller, “The Ancient Church Order Literature.”
132.
Fonrobert, “The Didascalia apostolorum.”
133.
Synek, “Dieses Gesetz is gut,” and in a summary in eadem, “Die Apostolischen Konstitutionen – Ein “Christlicher Talmud” aus dem 4. Jh,” Biblica 79 (1998): 27–56.
134.
Efraim Elimelech Urbach, The Halakhah, Its Sources and Development, trans. Raphael Posner, Yad La-Talmud (Jerusalem: Massada, 1986), 1.
135.
For a discussion on the late antique rabbinic legalism as a new invention influenced by the Roman Empire, see Natalie B. Dohrmann, “Law and Imperial Idioms: Rabbinic Legalism in a Roman World,” in Jews, Christians, and the Roman Empire: The Poetics of Power in Late Antiquity, ed. Natalie B. Dohrmann and Annette Yoshiko Reed (Jewish Culture and Contexts; Philadelphia: University of Pennsylvania Press, 2013), 63–78.
136.
For a review of the earlier scholarship and the change in relation to Jewish law, see Ed Parish Sanders, Paul and Palestinian Judaism: A Comparison of Patterns of Religion (Philadelphia: Fortress Press, 1977), and Bernard S. Jackson, “Legalism,” Journal of Jewish Studies 30 (1979): 1–22.
137.
See, especially, Alex P. Jassen, “American Scholarship on Jewish Law in the Dead Sea Scrolls,” in The Dead Sea Scrolls in Scholarly Perspective: A History of Research, ed. Devorah Dimant (Studies on the Text of the Desert of Judah; Leiden and Boston: Brill, 2012), 101–54, who reviews the study of law in the Dead Sea Scrolls, surveying the biographies of some of the prominent scholars in this field, starting from the early twentieth century, and Aharon Shemesh, “Trends and Themes in Israeli Research of the Halakhah in the Dead Sea Scrolls,” in ibid., 345–61, who describes the importance of traditional and academic Talmudic studies in the training of Israeli scholars who study Qumranic halakha.
138.
Lawrence H. Schiffman, Qumran and Jerusalem: Studies in the Dead Sea Scrolls and the History of Judaism (Studies in the Dead Sea Scrolls and Related Literature; Grand Rapids: William B. Eerdmans, 2010), 63–78; Yaakov Sussmann, “The History of Halakha and the Dead Sea Scrolls — Preliminary Observations on Miqṣṣat Ma‘aśe Ha-Torah (4QMMT),” Tarbiz 59 (1990): 11–76 at 12–22, or, in a shortened English version, in “The History of the Halakha and the Dead Sea Scrolls,” in Qumran Cave 4: 5, ed. Elisha Qimron and John Strugnell (Discoveries in the Judean Desert 10; Oxford: Clarendon Press, 1994), 179–200, at 179–84; and Vered Noam, From Qumran to the Rabbinic Revolution: Conceptions of Impurity (Jerusalem: Yad Izhak Ben-Zvi, 2010), 4–12, on the delay in the study of halakha in the overall research of the Dead Sea Scrolls. Likewise, Fraade, in his review of the study of the Dead Sea Scrolls, emphasized the importance of their comparison to rabbinic literature. See Steven D. Fraade, Legal Fictions: Studies of Law and Narrative in the Discursive Worlds of Ancient Jewish Sectarians and Sages (Supplements to the Journal for the Study of Judaism 147; Leiden and Boston: Brill, 2011), 109–124.
139.
Joseph M. Baumgarten, Studies in Qumran Law, ed. Jacob Neusner (Studies in Judaism in Late Antiquity 24; Leiden: Brill, 1977); Jackson, Essays, 59–87.
140.
Lawrence H. Schiffman, Sectatian Law in the Dead Sea Scrolls: Courts, Testimony and the Penal Code (Brown Judaic Studies 33; Chico, CA: Scholars Press, 1983); Aharon Shemesh, “The Scriptural Background of the Penal Code in the Rule of the Community and Damascus Document,” Dead Sea Discoveries 15 (2008): 191–224; idem, Punishments and Sins: From Scripture to the Rabbis (Jerusalem: Magnes, 2003), 57–98.
141.
Aharon Shemesh and Cana Werman, Revealing the Hidden: Exegesis and Halakha in the Qumran Scrolls (Jerusalem: Bialik Institute, 2011), 149–88. See, especially, the interesting debate between Vered Noam, “Divorce in Qumran in Light of Early Halakhah,” Journal of Jewish Studies 56 (2005): 206–23 and Bernard S. Jackson, “Marriage and Divorce: From Social Institutions to Halakhic Norms,” in The Dead Sea Scrolls: Texts and Context, ed. Charlotte Hempel (Studies on the Texts of the Desert of Judah 90; Leiden and Boston: Brill, 2010), 339–64. While Noam described institutionalized divorce starting from Qumran, Jackson claimed that the earliest signs of institutionalized divorce are in 1 Corinthians.
142.
Noam, From Qumran to the Rabbinic Revolution; Yair Furstenberg, Purity and Community in Antiquity: Traditions of the Law from Second Temple Judaism to the Mishnah (Jerusalem: Magnes, 2016).
143.
Lawrence H. Schiffman, The Halakhah at Qumran (Studies in Judaism in Late Antiquity 16; Leiden: Brill, 1975); Shemesh and Werman, Revealing the Hidden.
144.
See, especially, the review of Lutz Döring, “Jewish Law in the Dead Sea Scrolls: Some Issues for Consideration,” in The Hebrew Bible in Light of the Dead Sea Scrolls, ed. Nora David et al. (Forschungen zur Religion und Literatur des Alten und Neuen Testaments 239; Göttingen: Vandenhoeck & Ruprecht, 2012), 449–62, who lists issues that should be discussed in the study of law in the Dead Sea Scrolls.
145.
Yaakov Sussmann, “The History of Halakha and the Dead Sea Scrolls — Preliminary Observations on Miqṣṣat Ma‘aśe Ha-Torah (4QMMT),” and the response of Yaakov Elman, “Some Remarks on 4QMMT and the Rabbinic Tradition: Or, When Is a Parallel Not a Parallel,” in Reading 4QMMT: New Perspectives on Qumran Law and History, ed. John Kampen and Moshe J. Bernstein (SBL Symposium Series 2; Atlanta, GA: Scholars Press, 1996), 99–128.
146.
Daniel R. Schwartz,“Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law,” in The Dead Sea Scrolls: Forty Years of Research, ed. Devorah Dimant and Uriel Rappaport (Studies on the Texts of the Desert of Judah 10; Leiden, New York and Jerusalem: E. J. Brill, Magnes and Yad Izhak Ben-Zvi, 1992), 229–40.
147.
Jeffrey L. Rubenstein, “Nominalism and Realism in Qumranic and Rabbinic Law: A Reassessment,” Dead Sea Discoveries 6 (1999): 157–83.
148.
For some of these studies, see Aharon Shemesh, “4Q271.3: A Key to Sectarian Matrimonial Law,” Journal of Jewish Studies 49 (1998): 244–63; idem, Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis (The Taubman Lectures in Jewish Studies 6; Berkeley, CA and London: University of California Press, 2009); Christine E. Hayes, “Legal Realism and the Fashioning of Sectarians in Jewish Antiquity,” in Sects and Sectarianism in Jewish History, ed. Sacha Stern (IJS Studies in Judaica 12; Leiden and Boston: Brill, 2011), 119–46; Hayes, What's Divine about Divine Law? 101–05. More recently, Schwartz refined his original theory in Daniel R. Schwartz, Judean and Jews: Four Faces of Dichotomy in Ancient Jewish History (Toronto: University of Toronto Press, 2014), 21–47 [or in Hebrew in “From Qal Va-Homer to Gezerah Shavah – on Realism and Nominalism, Nature and Exile,” Diné Israel 30 (2015): 139–54], and related the difference between Qumranic realism and Talmudic nominalism to the difference between the Babylonian diaspora and the Palestinian center.
149.
Thomas Kazen, Scripture, Interpretation, or Authority? Motives and Arguments in Jesus’ Halakic Conflicts (Wissenschaftliche Untersuchungen zum Neuen Testament 320; Tübingen: Mohr Siebeck, 2013); Hayes, What's Divine about Divine Law? 140–64. See also Markus N. A Bockmuehl, Jewish Law in Gentile Churches: Halakhah and the Beginning of Christian Public Ethics (Edinburgh: T & T Clark, 2000), 87–143, who minimized the role of natural law in Second Temple Judaism and the New Testament.
150.
Vered Noam, “Ritual Impurity in Tannaitic Literature: Two Opposing Perspectives,” Journal of Ancient Judaism 1 (2010): 65–103 [or in Hebrew “Is It True That a ‘Corpse Does Not Defile’? On Ritual Contamination in Tannaitic Literature,” Tarbiz 78 (2009): 157–88], and the response of Yair Furstenberg, “Controlling Impurity: The Natures of Impuity in Second Temple Debates,” Diné Israel 30 (2015): 163*–96*; Yair Lorberbaum, “Halakhic Realism,” ibid., 9*–77*; Adiel Schremer, “‘What God Has Joined Together’: Predestination, Ontology, and the Nature of the Marital Bond in Early Rabbinic Discourse,” ibid., 139*–61*; Haim Shapira, “Marriage According to Noahide Law – between Nature and Law,” ibid., 19–42; Hayes, What's Divine About Divine Law? 195–222.
151.
Jacqueline Genot-Bismuth, “La terminologie de la Loi à l’époque du Second Temple, archéologie d'un vocabulaire occulte de l'anachronisme du terme ‘halakha,’ in Jewish Studies at the Turn of the Twentieth Century: Proceedings of the 6th EAJS Congress, Toledo, July 1998, ed. Judit Targarona Borrás and Angel Sáenz-Badillos (Leiden and Boston: Brill, 1999), 260–68; John P. Meier, “Is There Halaka (the Noun) at Qumran?” Journal of Biblical Literature 122 (2003): 150–55, whereas earlier Safrai, “Halakha,” and others specifically used this term.
152.
Moshe Halbertal, “The History of Halakhah and the Emergence of Halakhah,” Diné Israel 29 (2013): 1–23.
153.
See, for example, Shemesh, Halakhah in the Making, and the criticism of Steven D. Fraade, “Review of Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis. By Aharon Shemesh,” Journal for the Study of Judaism 43 (2012): 131–35.
154.
Caroline Humfress, “The Early Church,” in The Cambridge Companion to Medieval Canon Law, ed. Anders Winroth and John C. Wei (Cambridge and New York: Cambridge University Press, forthcoming).
155.
See, for example, Crook, Law and Life of Rome, 17–18. For an example regarding vitae necisque potestas in which the literary evidence differs from the legal discussion, see Steven Thompson, “Was Ancient Rome a Dead Wives Society? What Did the Roman Paterfamilias Get Away with?” Journal of Family History 31 (2006): 3–27 and later Thomas A. McGinn, “The Marriage Legislation of Augustus: A Study in Reception,” Legal Roots 2 (2013): 7–43, at 33–39.
156.
For the citation of early Christian literature in medieval western Canon Law and the medieval definition of Church Fathers, see Jean Werckmeister, “The Reception of the Church Fathers in Canon Law,” in The Reception of the Church Fathers in the West: From the Carolingians to the Maurists, ed. Irena Dorota Backus (New York: Brill, 1997), 51–81, and, earlier, van de Wiel, History of Canon Law, 21–22. See also Charles Munier, Les sources patristiques du droit de l’Église du VIIIe au XIIIe siècle (Mulhouse: Salvator, 1957), who discussed the use of patristic literature in collections that later entered canonical codifications.
157.
See, for example, Gaudemet, L’Église dans l'Empire romain: IVe-Ve Siècles, 467–83 and idem, Le droit romain dans la littérature chrétienne occidentale du IIIe au Ve siècle (Ius Romanum Mediiaevi I, 3, b; Mediolani: typis Giuffrè, 1978). In the Palestinian context, see, especially, Saul Lieberman, “Roman Legal Institutions in Early Rabbinics and in the Acta Martyrum,” Jewish Quarterly Review 35 (1944): 1–57, who drew on Martyrs Acts in Greek and Latin to shed light on Roman legal institutions mentioned in Talmudic literature.
158.
Caroline Humfress, “Patristic Sources,” in The Cambridge Companion to Roman Law, ed. David Johnston (New York: Cambridge University Press, 2015), 97–118.
159.
For the resemblance between Tertullian's legal traditions and Roman law, see Gillian Clark, “‘Spoiling the Egyptians’: Roman Law and Christian Exegesis in Late Antiquity,” in Law, Society, and Authority in Late Antiquity, ed. Ralph W. Mathisen (Oxford and New York: Oxford University Press, 2001), 133–47, at 137–38, and David G. Hunter, “Marrying and the Tabulae Nuptiales in Roman North Africa from Tertullian to Augustine,” in To Have and to Hold: Marrying and Its Documentation in Western Christendom, 400–1600, ed. Philip Lyndon Reynolds and John Witte (Cambridge, UK and New York: Cambridge University Press, 2007), 95–113, at 99–102. This resemblance has led to a discussion regarding the possibility that Tertullian, the Christian writer, was actually a jurist, or even the same person as the Roman jurist Tertullianus. For discussion, see Timothy D. Barnes, Tertullian: A Historical and Literary Study (Oxford: Oxford University Press, 1985), 22–9; David Rankin, “Was Tertullian a Jurist?” Studia Patristica 31 (1997): 335–4, and Jill Harries, “Tertullianus & Son?” in A Wandering Galilean: Essays in Honour of Seán Freyne, ed. Zuleika Rodgers, Margaret Daly–Denton and Anne Fitzpatrick-McKinley (Supplements to the Journal for the Study of Judaism 132; Leiden and Boston: Brill, 2009), 385–99.
160.
Alexander Beck, Römisches Recht bei Tertullian und Cyprian (Schriften der Königsberger Gelehrten Gesellschaft, Geisteswissenschaftliche Klasse 7.2; Aalen: Scientia Verlag, 1967).
161.
For the resemblance between Augustine's legal traditions and Roman law, see Francesco Lardone, “Roman Law in the Work of St. Augustine,” Georgetown Law Journal 21 (1933): 435–56. For his position as a legal authority, see Lenski, “Evidence for the Audientia Episcopalis.”
162.
A similar picture is portrayed from the study of Latin Christian theology in comparison to Roman jurisprudence, as surveyed by Humfress, Orthodoxy and the Courts in Late Antiquity, 147–52.
163.
Ando, “Pluralism and Empire.”
164.
Ferguson, “Creeds, Councils and Canons.”
165.
Susan Wessel, “The Formation of Ecclesiastical Law in the Early Church,” in The History of Byzantine and Eastern Canon Law to 1500, ed. Wilfried Hartmann and Kenneth Pennington (History of Medieval Canon Law; Washington, DC: Catholic University of America Press, 2012), 1–23.
166.
See, especially, Mueller's discussion, “The Ancient Church Order Literature.”
167.
For some of the vast literature on this phenomenon, see Fergus Millar, Rome, the Greek World, and the East, vol. 3 (Studies in the History of Greece and Rome; Chapel Hill: University of North Carolina Press, 2002–2006).
168.
See Arye Edrei and Doron Mendels, “Why Did Paul Succeed Where the Rabbis Failed? The Reluctance of the Rabbis to Translate Their Teachings into Greek and Latin and the Split Jewish Diaspora,” in Jesus Research: New Methodologies and Perceptions, ed. James H. Charlesworth and Rhea Brian (Princeton-Prague Symposia Series on the Historical Jesus; Grand Rapids: William B. Eerdmans, 2014), 361–96. This article is based on two previous articles, eidem, “A Split Jewish Diaspora: Its Dramatic Consequences I,” Journal for the Study of the Pseudepigrapha 16 (2007): 91–137, and eidem, “A Split Jewish Diaspora: Its Dramatic Consequences II,” Journal for the Study of the Pseudepigrapha 17 (2008): 163–87, in which the authors differentiated between the western diaspora, i.e., the eastern and western Roman Empire, and the eastern diaspora, i.e., Babylon. Fergus Millar, “A Rural Jewish Community in Late Roman Mesopotamia, and the Question of a ‘Split’ Jewish Diaspora,” Journal for the Study of Judaism 42 (2011): 351–74, criticized their claim based on the linguistic and social connections between Syrian Christians and Jews. Following his response, Edrei and Mendels distinguished between the Latin-speaking western Roman Empire and the Greek-speaking eastern Roman Empire, and surveyed the lack of Jewish cultural and religious productivity in the Latin west in their later article.
169.
Boaz Cohen, Jewish and Roman Law: A Comparative Study, 2 vols. (New York: Jewish Theological Seminary of America, 1966).
170.
Daube, Collected Works of David Daube, mainly vols. 2, 4 and 5.
171.
See, especially, the review of Catherine Hezser, “Introduction,” in Rabbinic Law in Its Roman and Near Eastern Context, ed. Catherine Hezser (Texte und Studien zum antiken Judentum 97; Tübingen: Mohr Siebeck, 2003), 1–15 and idem, “Roman Law and Rabbinic Legal Composition,” in The Cambridge Companion to the Talmud and Rabbinic Literature, ed. Charlotte Elisheva Fonrobert and Martin S. Jaffee (Cambridge Companions to Religion; Cambridge and New York: Cambridge University Press, 2007), 144–63, who claims that the question of influence has shifted to the question of how the text participates in the ancient cultural and legal discourse.
172.
Reuven Yaron, Gifts in Contemplation of Death in Jewish and Roman Law (Oxford: Clarendon Press, 1960).
173.
For the methodological problem of claiming Roman influence on halakha, see Bernard S. Jackson, “Evolution and Foreign Influence in Ancient Law,” The American Journal of Comparative Law 16 (1968): 372–90 and, idem, “On the Problem of Roman Influence on the Halakhah and Normative Self-Definition in Judaism,” in Jewish and Christian Self-Definition, ed. Ed P. Sanders, Albert I. Baumgarten, and Alan Mendelson (London: SCM Press, 1981), 157–203, at 352–75. For some recent comparative studies which do not claim that there is mutual influence, see Leib Moscovitz,“Legal Fictions in Rabbinic Law and Roman Law: Some Comparative Observations,” in Rabbinic Law in Its Roman and Near Eastern Context, 105–32.
174.
See, for example, Ranon Katzoff, “Children of Intermarriage: Roman and Jewish Conception,” in ibid., 277–86, and, earlier, Asher Gulak, Das Urkundenwesen im Talmud: Im Lichte der griechische-aegyptischen Papyri und des griechischen und roemischen Rechts (Jerusalem: Rubin Mass, 1935); idem, Legal Documents in the Talmud, ed. Ranon Katzoff (Jerusalem: Magnes, 1994).
175.
Kimberley Czajkowski, Localized Law: The Babatha and Salome Komaise Archives (Oxford Studies in Roman Society and Law; Oxford: Oxford University Press, 2017).
176.
For recent surveys of research, see David Brakke, “The East (2): Egypt and Palestine,” in The Oxford Handbook of Early Christian Studies, ed. Susan Ashbrook Harvey and David G. Hunter (Oxford Handbooks in Religion and Theology; Oxford and New York: Oxford University Press, 2008), 342–63, and, specifically, regarding Syriac Christianity, Lucas van Rompay, “The East (3): Syria and Mesopotamia,” in ibid., 364–86; Christine Shepardson, “Syria. Syriac. Syrian: Negotiating East and West,” in A Companion to Late Antiquity, ed. Philip Rousseau and Jutta Raithel (Blackwell Companions to the Ancient World; Chichester, UK and Malden, MA: Wiley-Blackwell, 2009), 455–66 and Millar, “A Rural Jewish Community in Late Roman Mesopotamia,” on the ties between Syrian Christians, Jews and Judaism.
177.
Wagschal, Law and Legality in the Greek East.
178.
This composition may be related to the significant schools of Roman law in Beirut and Constantinople, which took the lead over Rome starting from the fifth century. See Detlef Liebs, “Roman Law,” in The Cambridge Ancient History, ed. Averil Cameron, Bryan Ward-Perkins and Michael Whitby (Cambridge: Cambridge University Press, 2001), 238–59, at 253–58 and the bibliography noted there.
179.
Yifat Monnickendam, “Articulating Marriage: Ephrem's Legal Terminology and Its Origins,” Journal of Semitic Studies 58 (2013): 257–96.
180.
Eadem, “How Greek Is Ephrem's Syriac? Ephrem's Commentary on Genesis as a Case Study,” Journal of Early Christian Studies 23 (2015): 213–44, at 217–27.
181.
Eadem, “Halakhic Issues in the Writings of the Syriac Church Fathers Ephrem and Aphrahat” (Ramat Gan: Bar-Ilan University Press, 2011).
182.
Eadem, “The Kiss and the Earnest.”
183.
Clifford Ando, “The Varieties of Ancient Legal History Today,” Critical Analysis of Law 3 (2016): 1–8.
184.
For a review, see Elizabeth A. Clark, “From Patistics to Early Christian Studies,” in The Oxford Handbook of Early Christian Studies, ed. Susan Ashbrook Harvey and David G. Hunter (Oxford Handbooks in Religion and Theology; Oxford and New York: Oxford University Press, 2008), 7–41 and, earlier, David Brakke, “The Early Church in North America: Late Antiquity, Theory, and the History of Christianity,” Church History 71 (2002): 473–91. See also Mark Humphries, “The West (1): Italy, Gaul, and Spain,” in The Oxford Handbook of Early Christian Studies, ed. Susan Ashbrook Harvey and David G. Hunter (Oxford Handbooks in Religion and Theology, Oxford and New York: Oxford University Press, 2008), 283–301, following Brakke regarding Church history of the Latin west.
185.
For a review, see Adam H. Becker, “Christian Society,” in The Oxford Handbook of Social Relations in the Roman World, ed. Michael Peachin (Oxford and New York: Oxford University Press, 2011), 567–86.
186.
See Stefan Rebenich, “Late Antiquity in Modern Eyes,” in A Companion to Late Antiquity, ed. Philip Rousseau and Jutta Raithel (Blackwell Companions to the Ancient World; Chichester, UK and Malden, MA: Wiley-Blackwell, 2009), 77–92, at 89–92, and Edward James, “The Rise and Function of the Concept ‘Late Antiquity,’” Journal of Late Antiquity 1 (2008): 20–30, who emphasized the role of the east in late antique studies.
187.
For a review and further bibliography, see Fred D. Miller, “Early Jewish and Christian Legal Thought,” in A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, ed. Fred D. Miller and Carrie-Ann Biondi (A Treatise of Legal Philosophy and General Jurisprudence 6; Dordrecht: Springer Netherlands, 2007), 167–85, at 180–84 and, earlier, R. W. Carlyle and A. J. Carlyle, A History of Mediæval Political Theory in the West (Edinburgh and London: W. Blackwood and Sons, 1903), 1:81 ff.
188.
Jean Gaudemet, “La coutume et droit canonique,” Revue de droit canonique 38 (1988): 224–51. See also the survey of David Ibbetson, “Custom in Medieval Law,” in The Nature of Customary Law, ed. Amanda Perreau-Saussine and James Bernard Murphy (Cambridge and New York: Cambridge University Press, 2007), 151–75, regarding medieval acknowledgement of custom as part of the legal system.
189.
Hanina Ben Menahem, “Is Talmudic Law a Religious Legal System? A Provisional Analysis,” Journal of Law and Religion 24 (2008–2009): 379–401, but see also Bernard S. Jackson, “The Concept of Religious Law in Judaism,” Aufstieg und Niedergang der römischen Welt II 19.1 (Berlin: W. de Gruyter, 1979), 33–51.
190.
Similar caution is also required in related claims. See, for example, Bryen, “When Law Goes off the Rails,” who suggested studying Roman law using the dichotomy between halakha and aggada.
191.
Humfress, “The Early Church.”
192.
For a similar claim regarding medieval law, see Dirk Heirbaut, “Exploring the Law in Medieval Minds: The Duty of the Legal Historian to Write the Books of Non-Written Law,” in Making Legal History: Approaches and Methodology, ed. Anthony Musson and Chantal Stebbings (Cambridge and New York: Cambridge University Press, 2012), 118–130, who pointed out the methodological importance of defining medieval law as a “semi-autonomous social field” and describing unwritten law.